Supreme Court of New South Wales
Equity Division
Technology & Construction List
Hammerschlag J
17 July 2007
[2007] NSWSC 723
Hammerschlag J.
BACKGROUND TO AND NATURE OF THIS DISPUTE
[1] There is presently being developed at Chatswood on the North Shore Railway Line from Sydney to Hornsby, a new transport interchange with related retail, car park and other facilities.
[2] On 24 June 2005 the first defendant (“TIDC”) a corporation constituted by s 18A of the Transport Administration Act 1988 (NSW), the second defendant (“CRI”) and two guarantor companies associated with CRI made a deed known as the Chatswood Transport Interchange or CTI Development Deed (“the Development Deed”) which sets out the terms on which the works will be delivered.
[3] In the Development Deed, CRI undertook an obligation to achieve completion of specified stages (Portions) of the works by specified Completion Dates.
[4] CRI also undertook to engage the CTI Infrastructure Works Contractor, being the plaintiff (formerly known as Barclay Mowlem Construction Ltd), on the terms of a contract described as the CTI Infrastructure D&C Contract (“the D&C Contract”) exhibited to the Development Deed.
[5] The D&C Contract was also entered into on 24 June 2005.
[6] The Development Deed contemplated the entry into of an instrument described as the Independent Certifier Deed, between TIDC, CRI, a number of parties who have a financial interest in the development and an Independent Certifier.
[7] The Independent Certifier Deed was entered into on 29 July 2005. Under it Page Kirkland Management Pty Ltd was appointed the Independent Certifier to perform “Services” described in that deed, amongst others, to “administer extensions of time to the Date for Completion of each Portion of the CTI Infrastructure Works in accordance with cll 16.8, 16.9, 16.10 and 16.11” of the Development Deed.
[8] Those clauses concern the entitlements to, claims for, conditions precedent to and grants of, extensions of time with respect to relevant dates for completion of particular milestones in the construction of the works.
[9] A large number of provisions, including those concerning extensions of time, in the Development Deed appear, mutatis mutandis, in the D&C Contract. The Development Deed and the D&C Contract might colloquially be described as back to back contracts. I shall refer to the Development Deed and the D&C Contract collectively as “the Contracts” to distinguish them from the Independent Certifier Deed.
[10] Each of the Development Deed, the D&C Contract and the Independent Certifier Deed have their own respective dispute resolution provisions. The dispute resolution provisions in the Contracts, with one significant difference, are as between the respective parties, to the same effect. The dispute resolution provisions in the Independent Certifier Deed are of a different sort.
[11] In February 2006 each of the Plaintiff and CRI applied for extensions of time under the applicable provisions of the Contracts. The relevant applications were described as claims numbers 25 and 27. They were dealt with by the Independent Certifier who ultimately granted them.
[12] TIDC has challenged the validity of the extensions of time granted, which has generated a dispute.
[13] By letter dated 22 November 2006 to CRI, TIDC sought to invoke the dispute resolution provisions in the Development Deed putting, primarily, that the conditions precedent to be fulfilled before the Independent Certifier was empowered to grant the extensions it did, had not been fulfilled. On 24 November 2006 CRI, in turn, sought to invoke the corresponding provisions in the D&C Contract.
[14] On 27 November 2006 CRI, by letter of that date, gave TIDC notice, copied to the plaintiff, in the following terms:
We refer to TIDC’s Notice of Dispute Clause 27.1 regarding Extension of Time Claim No 25 and 27 dated 22nd November 2006 received on the 23rd November 2006.
In accordance with clause 27.2 of the CTI Development Deed we refer the dispute to yourself and by way of c.c. of this letter to the Chief Executive Officer of the Developer Malcolm Naylor. You both must meet within 5 Business Days from the 28th November 2006 to undertake genuine and good faith negotiations with a view to resolving the dispute or difference within 15 Business Days of this letter.
[15] A meeting took place between representatives of the plaintiff, CRI and TIDC, on 25 January 2007 which foreshadowed a “without prejudice” staged negotiation process.
[16] The negotiation period agreed between them expired on 9 March 2007 and by 9 May 2007 negotiations had not resolved the extension of time issues.
[17] There is accordingly a dispute between TIDC and CRS, and a corresponding dispute between CRS and the plaintiff, whether the extensions of time known as claims 25 and 27 were validly granted by the Independent Certifier. I shall refer to these two disputes collectively as “the Extension Dispute”.
[18] On 31 May 2007 TIDC sought the appointment of an expert (which is contemplated by the Development Deed) to resolve the Extension Dispute.
[19] Separately, on 1 June 2007 TIDC in a letter to CRI, the plaintiff, the Independent Certifier and the other parties to the Independent Certifier Deed sought to invoke the dispute resolution provisions in the Independent Certifier Deed in relation to the conduct of the Independent Certifier with respect to a number of things but including what it did in relation to claims 25 and 27. The basic assertion was that the Independent Certifier had breached its obligations under the Independent Certifier Deed and also its duty of care to TIDC.
[20] The dispute resolution provisions in the Independent Certifier Deed require a meeting between chief executive officers to take place within five business days.
[21] The affidavit evidence establishes that such a meeting took place and that certain agreements were reached. It would appear that if certain outstanding claims for extensions of time are dealt with by the Independent Certifier by 1 July 2007, the parties to that dispute have agreed that there is no necessity for any further meeting. Accordingly the dispute comprehended in the 1 June 2007 letter may have been dealt with, and may transpire to have been resolved.
[22] On 8 June 2007 the plaintiff moved this Court urgently for injunctive relief inhibiting further use of the dispute resolution procedures under the Contracts on the basis that the only avenue for resolution of the Extension Dispute was via the Independent Certifier Deed.
[23] Einstein J granted the injunction and fixed the matter for hearing before me on a final basis. I extended the injunction at the end of the hearing until further order of the Court.
THE PROVISIONS OF THE CONTRACTS AND THE INDEPENDENT CERTIFIER DEED
[24] The relevant terms of the Contracts and the Independent Certifier Deed are lengthy. I have set them out in four Schedules to this judgment. The First Schedule contains the dispute resolution provisions in the Contracts. The Second Schedule contains other relevant provisions of the Contracts (using the D&C Contract). The Third Schedule contains the dispute resolution provisions in the Independent Certifier Deed and the Fourth Schedule contains other relevant provisions in the Independent Certifier Deed.
REFERENCE TO CLAUSE NUMBERS
[25] Where below I refer to cl 13 or any sub-clause of it, it is a reference to the Independent Certifier Deed. References to any other clause numbers, unless I say otherwise, are references to the D&C Contract.
RELIEF SOUGHT
[26] In its summons the plaintiff claims a declaration that any dispute concerning decisions made by the Independent Certifier in relation to extensions of time pursuant to cll 16.8, 16.9, 16.10 and 16.11 of the Development Deed and the D&C Contract are disputes falling within the scope of cl 13 of the Independent Certifier Deed.
[27] It claims declarations that the Extension Dispute is a dispute falling within the scope of cl 13.1 of the Independent Certifier Deed and that the Notice of Dispute is ineffective insofar as it purports to notify a dispute concerning a decision made in the administration of extension of time claims 25 and 27 under cl 27.1 of the Development Deed.
[28] It claims a declaration that cl 27.17 of the D&C Contract is invalid insofar as it constitutes an attempt to oust the jurisdiction of the Court.
[29] It seeks injunctions restraining TIDC from taking any further step or action to determine the Extension Dispute.
[30] An injunction is also sought against the third defendant who would otherwise be the person empowered to appoint the expert under cl 27. The third defendant has filed a submitting appearance.
[31] There is no issue that the relief in these proceedings is directed to, and only to, the Extension Dispute.
THE ISSUES
[32] There are two principal issues.
[33] The first issue is whether the only avenue for resolution of the Extension Dispute is cl 13 of the Independent Certifier Deed. It has four sub-issues:
- is cl 13 is void for uncertainty?
- if so, having regard to the fact that cl 27.2 is in the same terms, does cl 27 in its entirety suffer the same fate?
- if cl 13 is effective does it apply to the resolution of the Extension Dispute to the exclusion of cl 27?
- if cl 13 is effective and applies over cl 27, is this an appropriate case for the grant of the injunctive relief sought against TIDC?
[34] The second issue is whether cl 27 of the D&C Contract (assuming cl 27 stands) is invalid because it purports to oust the jurisdiction of the Court.
THE AVENUE FOR DISPUTE RESOLUTION
The plaintiff’s case
[35] Mr Inatey of Senior Counsel together with Mr Nicholls of Counsel appeared for the plaintiff. The substance of what they submitted is follows:
- the Extension Dispute is a dispute or difference “arising out of or in connection with this document or the Services” as contemplated by cl 13.1(a);
- the plaintiff, TIDC and CRI as parties to the Independent Certifier Deed are accordingly bound to proceed with it under cl 13, which directs itself initially at bringing about resolution by agreement;
- if they do not resolve the Extension Dispute themselves, the only forum contemplated for its adjudication is litigation;
- cl 27 does not apply because it only covers disputes or differences between CRI and the plaintiff (and only them) whereas the Extension Dispute includes the Independent Certifier;
- there is excluded from the operation of cl 27 any dispute or difference “which will be decided under the Independent Certifier Deed”; (emphasis added)
- the Extension Dispute is one which will be so decided under the Independent Certifier Deed. Decided means decided either by the parties themselves or by the Court;
- additional support for this outcome is to be derived from cl 18.8 which provides that the parties “may, if they dispute the Independent Certifiers’ determination, invoke the dispute resolution provisions contained in the Independent Certifiers Deed”. That is what the plaintiff has done. Thus the only avenue is by way of invocation of the dispute resolution provisions in that deed. If there is no agreement which resolves the Extension Dispute, it goes to litigation.
[36] I will refer to that part of cl 27.1 which excludes from its ambit “that which will be decided under the Independent Certifier Deed” as the “carve out”.
The defendants’ case
[37] Mr Meagher of Senior Counsel together with Mr Rich of Counsel appeared for TIDC. Mr Oslington of Queen’s Counsel together with Mr L V Gyles of Counsel appeared for CRI. Although not in the following order, the substance of what was submitted is:
- the dispute resolution provisions in cl 13 have no effect because they are void for vagueness. They are agreements to negotiate in good faith and to agree. Such provisions are not legally binding. It follows that there are no operative “dispute resolution provisions” as contemplated by cl 18.8 and there is no content to the carve out because there is nothing which “will be decided under the Independent Certifier Deed”;
- the parties acknowledge in cl 16.5 that a Date for Completion will only be extended in accordance with cl 16.10 or cl 16.12, or when so determined under cl 27. This means that the only way the Independent Certifier’s determination to grant an extension of time can be impeached, and another determination substituted for it, is under cl 27;
- the phrase “all disputes or differences arising out of or in connection with this document or the Services” in cl 13.1(a) should be construed accordingly and read down if necessary so as not to cover a dispute or difference between the parties to the Contracts on whether an extension of time under those Contracts has properly been given;
- cl 13 covers disputes about the rights and obligations which spring from the Independent Certifier Deed itself or as to the Services provided by the Independent Certifier where the dispute concerns rights between them and in their capacity as parties to the Independent Certifier Deed, not in their capacity as parties to some other instrument, here, the Contracts;
- the carve out does not operate because the Extension Dispute will not be decided under the Independent Certifier Deed. For a dispute to be decided under the Independent Certifier Deed there would have to be resolution by agreement (including agreement on a procedure to resolve it) as contemplated by cll 13.2(c)(i) and (ii). A matter determined by the Court is not “decided under the Independent Certifier Deed”;
- the carve out also does not operate because of the use of the words “will be decided” which connote inevitability. Unless when cl 27.1 is invoked such certainty has been achieved under cl 13 (that is by agreement) the carve out has no work to do’;
- cl 18.8 is permissive rather than prescriptive. Because of the use of the word “may”, the permission to invoke the provisions in the Independent Certifier Deed only applies if those provisions comprehend the dispute in question, and they do not comprehend the Extension Dispute, in the alternative, the permissive words in cl 18.8 are redundant and have no effect;
- if the Contracts on the one hand and the Independent Certifier Deed on the other are inconsistent, cl 1.6(b) read with Sch 1 of the Contracts ensures that as against the Independent Certifier Deed, the Contracts prevail;
- cl 13 ultimately goes nowhere. It is a pre-condition to litigation and TIDC and CRI are not going to court;
- finally, even if cl 13 works, the evidence shows that the parties (albeit under cl 27) have tried and failed to agree on the extension claims. There is accordingly no utility in granting the plaintiff any relief and in particular, injunctive relief.
Plaintiff’s reply on validity of cl 13
[38] In response to the contention that cl 13 is ineffective, Mr Inatey put that:
- the carve out still works because the ultimate resort contemplated by the Independent Certifier Deed is litigation. That route is unaffected by the status of the remainder of cl 13. Resolution by litigation remains within “that which will be decided under the Independent Certifier Deed”;
- the procedures referred to in cl 13.2 are merely a condition precedent to litigation and if they cannot be enforced it does not matter. The litigation route remains open;
- if cl 13.2 is invalid then so is cl 27 because cl 27.1 is in terms indistinguishable from cl 13.2 and is unseverable from the rest of cl 27.
[39] The last submission arose only in reply. Because of the possibility that it could provide another basis for the relief claimed by the plaintiff, I invited further submissions on it, and its effect. I received further assistance from counsel. Although the contention was not articulated in the plaintiff’s list statement, the issue was ventilated without objection or assertion by the defendants of any prejudice. I have accordingly proceeded to decide it: Laws Holdings Pty Ltd v Short(1972) 46 ALJR 563.
Defendants’ response to asserted invalidity of cl 27
[40] The defendants put that:
- enforceability of cl 27.2 does not affect the operation of the remainder, because all cl 27.2 requires is the occurrence of particular events as a precondition to expert determination. Those events can happen irrespective of enforceability, and in this case they have;
- cl 27.2 is severable from the remainder of cl 27.1 and should be severed because of the important role the expert determination and arbitration provisions play with respect to the equally important provisions concerning extensions of time. There are substantial penalties for failure to complete on time and without a mechanism to substitute an expert determination or arbitral award for a grant by the Independent Certifier, an important part of the structure of the Contracts is lost;
- cl 32.7 would save from invalidity the remainder of cl 27 even if cl 27.2 is in invalid or unenforceable;
- finally, (in something of a shift from the position they initially took), the “front end” of cl 27.2 which requires a meeting to take place and referral to the designated persons to occur is binding and enforceable, and is severable from the “back end” of cl 27.2 which requires good faith negotiations and an endeavour to agree.
Effectiveness of cl 13
[41] The validity and enforceability of clauses in the nature of cl 13 have been the subject of fairly extensive judicial consideration. In Elizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd (1995) 36 NSWLR 709 Giles J, following what was said by Lord Ackner in Walford v Miles [1992] 2 AC 128 at 138, held that a mediation agreement which provided that, “Each party confirms that it enters into this mediation with a commitment to attempt in good faith to negotiate towards achieving a settlement of the dispute” was not sufficiently certain to be given effect.
[42] The reasoning in those decisions is that an agreement to negotiate, like an agreement to agree, is unenforceable because it lacks certainty. That it lacks certainty is demonstrated by the inevitable tension between negotiation (in which a party is free to negotiate in its own interests) on the one hand, and an obligation to have regard to the interests of the other party and the maintenance of good faith on the other.
[43] It is settled law that an agreement to agree is too vague to be enforceable: Booker Industries Pty Ltd v Wilson Parking (Queensland) Pty Ltd (1982) 149 CLR 600 at 604.
[44] With respect to agreements to negotiate in good faith, in Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1, Kirby P held that a promise to negotiate in good faith will in some circumstances be enforceable depending on its precise terms. His Honour said at p 2:
In a small number of cases, by reference to a readily ascertainable external standard, the court may be able to add flesh to a provision which is otherwise unacceptably vague or uncertain or apparently illusory.
[45] Handley JA said at p 41-42:
Negotiations are conducted at the discretion of the parties. They may withdraw or continue, accept, counter offer or reject, compromise or refuse, trade-off concessions on one matter for gains on another and be as unwilling, willing or anxious and as fast or as slow as they think fit.
To my good mind these considerations demonstrate that a promise to negotiate in good faith is illusory and therefore cannot be binding.
[46] In Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at 254, Einstein J took a different approach. His Honour disagreed that a good faith requirement in negotiations is too vague and uncertain to be meaningfully enforced. His Honour said in relation to the tension between negotiation according to self interest and the maintenance of good faith that;
Such tension ought not to be the lynch pin in an argument that a good faith requirement in negotiation is too vague and uncertain to be meaningfully enforced.
[47] In that case, however, His Honour found that the mediation agreement was unenforceable as uncertain because it failed to spell out a material matter, namely, how responsibility for payment of the mediators’ costs was to be dealt with. Whilst His Honour would have held the agreement to negotiate in good faith otherwise to be enforceable, it was not enforceable in that case because it was not severable from an unenforceable mediation clause. The holding concerning the good faith requirement was accordingly obiter.
[48] In my view, the approach taken by Handley JA in Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd and Giles J inElizabeth Bay Developments Pty Ltd v Boral Building Services Pty Ltd is correct and I propose to follow it.
[49] There is no particular yardstick in an agreement simpliciter to negotiate in good faith with a view to resolving a dispute, which renders the agreement certain as contemplated by Kirby P in Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd .
[50] It is not the tension between negotiation and good faith that is the lynch pin in the argument, it is the absence of an objective yardstick by which to measure the good faith or otherwise of a negotiating party’s stance. An appropriate (and indeed often effective) negotiating strategy may be a refusal to negotiate.
[51] The tension is a symptom of uncertainty, not its cause.
[52] Clause 13.2(c)(i) is in my view, uncertain and unenforceable.
[53] Clause 13.2(c)(ii) has the additional difficulty that it does not have even the yardstick of good faith. It is clearly simply an agreement to agree.
[54] The provisions read together contemplate failure to agree after good faith negotiations and then a further attempt to agree a procedure to resolve the dispute.
[55] It was put by the defendants that cll 13.2(c)(i) and (ii), to use the words of Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd at para 71 “walk together” with each other and accordingly are unseverable from each other. It follows, they put, that even if cl 13.2(c)(i) were good, its coupling with cl 13.2(c)(ii) brings it down.
[56] In Whitlock v Brew (No 2) [1967] VR 803, the Full Court dealt at 807-808 with severance of uncertain provisions. It held that whether such a provision is severable depends upon:
The intention of the parties as to whether the operation of the contract apart from the impugned part was to be conditional on the efficacy of that part, or whether it was to take effect notwithstanding the failure of that part. That intention is to be ascertained from the construction of the contract as a whole.
[57] The decision was affirmed in Whitlock v Brew (No 2) (1968) 118 CLR 445.
[58] In my view, the good faith negotiation provision if certain would be capable of operating even if the provision contemplating later agreement was not.
[59] It does not seem to me that this outcome would materially change the intended effect of the document. This is the test the parties agreed to apply in cl 15.8(b) of the Independent Certifier Deed. That provision is a strong pointer to the intention of the parties that failure of the second limb of cl 13.2(c) would not impugn the first.
[60] An additional factor is that lying behind cl 13 is the notion of an attempted consensual resolution before litigation. That purpose would be served by the first round of negotiations even if there were no second round.
[61] I would accordingly hold that cl 13.2(c)(ii) is severable from the remainder of cl 13, and had I come to the view that cl 13.2(c)(i) was certain, the failure of cl 13.2(c)(ii) would not have impugned the operation of the entirety of cl 13.2(c).
[62] It follows that cll 27.2(c) and (d) are also uncertain and unenforceable.
[63] In their submissions in response to Mr Inatey’s submission that cl 27.2 should suffer the same fate as cl 13.2, the defendants put that the front end contemplating notice of dispute and the requirement for referral to the representatives was certain and enforceable and could be severed from the back end requirement to meet and negotiate.
[64] I do not agree. The parties could not have intended a provision which requires notice and referral to have no further exigible content. It cannot fairly be said that the parties could have intended provisions which require referral, to operate without any effective designation of what is to happen upon referral. In my view, such an outcome would materially change the intended effect of the document as contemplated by cl 15.8(b) of the Independent Certifier Deed.
[65] Mr Inatey accepted that if the machinery in cl 13.2 was ineffective, then the carve out has no field of operation unless litigation is part of “the dispute resolution provisions contained in the Independent Certifier Deed” as provided in cl 18.8.
[66] The next question is thus whether to go to litigation is to invoke the dispute resolution provisions in the Independent Certifier Deed. The related questions are whether litigation is part of “the procedures set out in this cl 13” (cl 13.1(a)) and whether court resolution is a dispute “decided under the Independent Certifier Deed” (cl 27.2(a)(ii)).
[67] In my view, the answer to each of those questions is no because:
- cl 13.1(b) makes exhaustion of “the procedures referred to in cl 13.2” a condition precedent to litigation. There is no reference to “litigation” in cl 13.2. It follows that litigation is not one of those procedures;
- cl 13.1(a) records that the parties will attempt to resolve all disputes in accordance with the procedures set out in cl 13. A party does not “attempt to resolve” a dispute by referring it to litigation. It does so as the antithesis of so attempting;
- resolution by litigation of a dispute does not mean it is decided under the Independent Certifier Deed. Clause 13.2(d) points to what decided means in the present context. It provides that the joint “decisions” of the Representatives will be reduced to writing and will be contractually binding. It is their decision, not the decision of the court, that is contemplated;
- grants of extensions of time affect the legal rights and obligations of the parties when they are given because of the terms of the Contracts which govern those grants and the consequences of giving them. This means that decisions of the Independent Certifier are decisions under the Contracts, not under the Independent Certifier Deed; Griffith University v Tang (2005) 221 CLR 99 at 128 para [80]-[81];
- so too, when a court resolves a contractual dispute by judgment, it acts under powers conferred by statute or under common law. It may hear a controversy which has arisen under the deed between the parties, it does not hear that controversy under the deed;
[68] It follows, in my view, that there is no effective and operative content in the “dispute resolution provisions” in the Independent Certifier Deed.
[69] It follows further that the Extension Dispute does not fall within the scope of any effective provision in the Independent Certifier Deed.
[70] But that is not the end of the matter.
[71] Does cl 27 nevertheless operate so as to make the Extension Dispute amenable to it?
[72] TIDC and CRI placed reliance on cl 32.7 which provides that if any provision is invalid or unenforceable, the validity or enforceability of any other provision will not thereby be impaired.
[73] Clause 32.7 does not assist the defendants. The problem lies with cl 27.3 which is the trigger for expert determination.
[74] For there to be an expert determination there has first to have been a referral and non-resolution under cl 27.2. Even if that clause is severable, one does not get to expert determination without the failed referral. Severance does not assist in this instance.
[75] However, there is nothing uncertain about cl 27.1, or in their own right, about the expert determination and arbitration provisions in cll 27.3 and following.
[76] The plaintiff’s principal proposition against severance of cl 27.2 from the balance is that cl 27 must be looked at as a whole and cannot be selectively activated. It puts that the procedure is mandatory. It further puts that it is artificial and not what the parties agreed that the trigger for the engagement of cl 27.3 should merely be referral followed by non-resolution of the dispute for whatever reason.
[77] The trigger for expert determination is, it puts, threefold: firstly referral, secondly attendance at the meeting, and thirdly, that the dispute or difference is not resolved under cl 27.2. The third necessary step is that the parties meet and negotiate and if they cannot resolve or agree then and only then can the matter be referred to expert determination in cl 27.3. It is not enough to have referral alone. To separate cll 27.2(a) and (b) from cll 27.2(c) and (d) is to remake the parties’ agreement. I was referred to the decision of Einstein J in State of New South Wales & Ors v Banabelle Electrical Pty Ltd & Ors (2002) 54 NSWLR 503 at 517 where His Honour articulated in alternative ways the circumstances when severance is not possible.
[78] The exercise, however, remains one of ascertaining the intention of the parties from the construction of the contract as a whole, and whether that intention is that the remainder, after severance, is still to operate.
[79] Even though the requirement to meet and undertake negotiations is not enforceable, it seems to me that there is nothing to prevent a party from referring the dispute to the respective representatives. How that is to occur is not specified so that it is open to any party to do it.
[80] The expert determination and arbitration provisions are still capable of doing their work in the same way they would have done it had there been no provision for attempted consensual resolution beforehand.
[81] The ambit of the dispute will still be clearly defined under cl 27.1(b) sufficient for an expert or arbitrator to determine it.
[82] Even if certain, cll 27.2(c) and (d) would not be susceptible to a decree for specific performance, and a party could therefore not be ordered to meet and negotiate: Hooper Baillie Associated Ltd v Natcon Group Pty Ltd (1992) 28 NSWLR 194 at 220; Aiton Australia Pty Ltd v Transfield Pty Ltd (at 244).
[83] If one party, after referral, refused to meet and 15 business days lapsed after the referral, it could hardly be suggested that the trigger in cl 27.3 had not been pulled because no meeting had taken place.
[84] It could not have been the intention of the parties that they would be left without the expert determination and arbitration mechanisms because, for whatever reason, agreement could not be reached after referral. Such a result would also not accord with the traditional doctrine that a court should seek to uphold, rather than destroy commercial bargains:Meehan v Jones ( 1982) 149 CLR 571 at 589; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd t/a ” Uncle Bens of Australia” (1992) 27 NSWLR 326 at 332.
[85] The Contracts specifically contemplate referral and failure to agree.
[86] Even though cll 27.2(c) and (d) are not enforceable directly or indirectly, if referral as a matter of fact occurs and there is no agreement for whatever reason, the condition precedent to expert determination will have been satisfied.
[87] In this fashion, the expert determination and arbitration provisions are in my view capable of operating even though cl 27.2 itself is unenforceable.
[88] There is force in the defendants’ submission that the expert determination and arbitration provisions are contemplated by the parties to play a critical role in the operation of the Contracts. That role is not undermined or substantively affected by the fact that the negotiation provisions in cl 27 are incapable of enforcement. Indeed, as I have said, the Contracts themselves contemplate the failure of the negotiation process.
[89] In my view, the intention of the parties garnered from the operation of the Contracts as a whole is that if the negotiation provisions are unenforceable the remainder of cl 27 should nevertheless operate.
[90] It follows that the plaintiff fails because cl 13 does not operate to give the carve out in cl 27.1 content, and the remainder of cl 27 can do its work even though cl 27.2 is unenforceable.
[91] Moreover in this case, unenforceable or not, as a fact cl 27.2 has done its work.
[92] The Extension Dispute is thus ripe for expert determination.
Construction and operation of the provisions
[93] Notwithstanding the above conclusion, I will proceed to consider the position on the hypothesis that cl 13 is effective.
[94] It is readily apparent that there is tension between the Contracts on the one hand and the Independent Certifier Deed on the other with respect to dispute resolution.
[95] Both the definition of Dates of Completion and the terms of cl 16.5(a)(ii) point in the direction that the Independent Certifier Deed has no role to play in the review of a determination of the Independent Certifier to grant an extension of time.
[96] Clause 18.8 indicates that where there is a dispute concerning such a determination the dispute resolution provisions contained in the Independent Certifier Deed may be invoked. Clause 13.4 implies that a decision of the Independent Certifier in respect of the Contracts which is not expressed to be final and binding (which the extensions here are not), is open to be overturned under the Independent Certifier Deed.
[97] Maybe a symptom of this tension is that both the plaintiff and TIDC submitted that provisions which were against its stance were redundant.
[98] As to cl 27, it seems clear that unless the carve out applies, the Extension Dispute would be covered. As to cl 13.1(a), on the other hand, terms such as “arising out of” or “in connection with” in the context of arbitration provisions are capable of very wide construction and they are usually given a wide meaning: IBM Australia Ltd v National Distribution Services Ltd(1991) 22 NSWLR 466 at 475; Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165.
[99] In construing instruments, or a suite of related instruments, the Court strives to give a construction “supplying a congruent operation to the various components of the whole”: Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522 at 529;Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382.
[100] It seems to me that the following are significant features of the Contracts and the Independent Certifier Deed viewed as components of a whole.
[101] Firstly, the Contracts legislate comprehensively to ensure that disputes between the parties to them are determined extra-curially and not by litigation. As Gleeson CJ said in Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (at 165):
When the parties to a commercial contract agree, at the time of making the contract, and before any disputes have yet arise, to refer to arbitration any dispute or difference arising out if the agreement, their agreement should not be construed narrowly. They are unlikely to have intended that different disputes should be resolved before different tribunals, or that the appropriate tribunal should be determined by fine shades of difference in the legal character of individual issues, or by the ingenuity of lawyers in developing points of argument.
[102] The Independent Certifier Deed on the other hand envisages only agreement or litigation.
[103] The Independent Certifier Deed has a number of parties who are not susceptible to the dispute resolution provisions in the Contracts. Accordingly, if a dispute which happened to be comprehended by both the Contracts and the Independent Certifier Deed were to arise involving parties not bound by the Contracts, it would have to go to litigation if there was no resolution by agreement.
[104] The parties to the Contracts are unlikely to have intended that different disputes between them should be resolved before different tribunals unless there is something which makes that necessary or at least commercially sensible.
[105] There is, in my view, no reason why if the dispute was only between the parties to the Contracts, litigation would have been their choice rather than expert determination or arbitration.
[106] The second (and related feature) is that cl 13.1(b) operates only as a bar to litigation. If a party is acting in accordance with the underlying policy of the Contracts, it will not be seeking resort to litigation, but to agreement and if that fails, to expert determination or arbitration. Here, TIDC and CRI are not seeking resort to litigation and will not seek it with respect to the Extension Dispute.
[107] If the dispute is “between” one or more of the parties to the Contracts and also between them and a party to the Independent Certifier Deed, and it is not resolved by agreement, litigation is then clearly the only course because the outside party is not bound by cl 27.
[108] A party need only invoke cl 13 if it intends to go to litigation. If it does not so intend, albeit that it has agreed to attempt to resolve all differences in accordance with the procedures set out in cl 13, there will be no utility in an injunction restraining litigation. It is well established that mediation or pre-litigation provisions will not be the subject of a decree for specific performance: Hooper Baillie Associated Ltd v Natcon Group Pty Ltd (at 220); Aiton Australia Pty Ltd v Transfield Pty Ltd (at 244).
[109] This, it seems to me, provides assistance as to how the words “which will be decided” in the carve out and the words in cl 18.8 “may … invoke the dispute resolution provisions contained in the Independent Certifier Deed” can operate harmoniously with cl 13.
[110] If a dispute comprehended by cl 27 arises, a party may call for a meeting under cl 13.2. If the meeting resolves the dispute, there will not be one and cl 27 will have no role to fulfil. A dispute which has arisen can always be settled. If the meeting does not itself resolve the dispute but results in agreement upon a procedure to resolve it, it will be resolved under the dispute resolution provisions in the Independent Certifier Deed so that the procedures in cl 27.1, if they have been enlivened then cease to apply and the parties are bound by their agreement otherwise made. The carve out thus only applies to resolution by agreement between the parties to the Contracts.
[111] In this way, a dispute between them alone never gets to litigation. They then do not have disputes between only them susceptible to resolution before different tribunals. The policies underlying cl 27 of not going to Court and also having only one route for dispute resolution are thereby satisfied.
[112] Clause 13.2(d) provides that the “joint decisions (if any) of the Representatives will be reduced to writing and will be contractually binding on the Parties to the dispute or difference”. This provision is consistent with the notion that a decision under cl 13 is a decision of the parties.
[113] There might perhaps be thought to be a degree of artificiality in a construction which allows a party to go via cl 13 but then brings it back to cl 27 when cl 27 has its own negotiation provisions. However, there is at least one reason why on the face of the provisions a party might so choose. The meeting is between chief executive officers under cl 13. Differently designated officers meet under cl 27.2 and the party might wish the chief executive officers to meet.
[114] The third significant feature is that only the Contracts and not the Independent Certifier Deed make provision for the substitution for the decision of the Independent Certifier of another’s decision (expert or arbitrator). A Court might in an appropriate case, set aside a determination for a host of reasons and remit it to the original decision maker, but it would not substitute its own decision for that of the decision maker.
[115] Although the Independent Certifier derives his authority to perform the functions required of it under the Contracts from the agreement between the parties to the Independent Certifier Deed, when it grants an extension of time, as is the case here, it does so under cl 16.10(a). Its decision is expressly or impliedly required or authorised by the Contracts albeit that its appointment is effected by the Independent Certifier Deed.
[116] This, it seems to me, lends some support for the proposition that grants of extensions of time by the Independent Certifier under cll 16.10 or 27 are viewed by the instruments as being properly matters between only the parties to the Contracts. It also lends support to a construction of cl 27.1 that the carve out is not intended to operate where all that is sought is expert determination or arbitration, notwithstanding the potentially wide ambit of the phrase “arising out of or in connection with this document or the Services” in cl 13.1(a).
[117] However, it is not necessary for TIDC and CRI to go that far because even if a wide construction is given to cl 13.1(a), in my view unless there is agreement, as I have set out above, the carve out has no work to do and unless litigation is contemplated, cl 13 itself has no role to play.
[118] There has been no agreement and litigation is not contemplated, accordingly the plaintiff has no basis for the injunctive relief sought.
[119] Mr Inatey put that cl 27 cannot apply when a party to a dispute is not one of the persons referred to in cl 27.1(a) and that the dispute here involved additional disputants, at least the Independent Certifier. The first of these propositions is undoubtedly correct because a non-party cannot be bound by the provision. The second proposition, in my view, is incorrect. The only disputants to the Extension Dispute are the parties to this litigation. The dispute between them and them alone is whether they are bound by the determination of the Independent Certifier. The Independent Certifier would not be a proper contradictor in the Extension Dispute. He has no interest in its outcome. The present case is no different to the common dispute whether a valuer appointed to fix the rental between landlord and tenant has acted within the terms of the lease in making his valuation: see eg. Legal & General Life of Australia Ltd v A Hudson Pty Ltd (1985) 1 NSWLR 314. Sometimes the valuer is joined in such proceedings, but the dispute is not “between” him and either of the contracting parties. No “relief” is sought against the Independent Certifier by TIDC or CRI in the Extension Dispute.
NO UTILITY
[120] The evidence establishes that there have been attempts to negotiate and they have been unsuccessful. It was also put that the practical effect of a permanent injunction would be to compel TIDC to litigate the Extension Dispute in Court in circumstances where both it and CRI wish to avail themselves of the procedure in cl 27.
[121] There is some force in this submission but having regard to the conclusions I have reached above it is not necessary to consider it further.
OUSTER
[122] Clause 27.17 is intended to avoid tandem procedures and to bind the plaintiff to the outcome of a dispute determined between TIDC and CRI (under the Development Deed) where there is a similar or duplicated dispute between the plaintiff and CRI.
[123] The Development Deed has an addition in cl 27.3 which is not in the D&C Contract under which TIDC and CRI agree that the plaintiff may attend expert determination proceedings as an observer.
[124] As a separate matter, Mr Inatey put that cl 27.17 of the D&C Contract (which for obvious reasons is not replicated in the Development Deed) but the existence of which is apparently contemplated by cl 27.3 of the Development Deed, is invalid or void as an impermissible attempt to oust the jurisdiction of the Court. Accordingly, he argued, even if cl 27 otherwise applies, it applies shorn of cl 27.17 so that there will be tandem expert determinations and/or arbitrations under the Development Deed and the D&C Contract, and the plaintiff will be entitled fully to participate in the latter.
[125] The fundamental proposition put was that the effect of cl 27.17 is to make the arbitral award binding on the plaintiff but leaving it without remedies that would be available to it to impeach the arbitration under the provisions of the Commercial Arbitration Act, 1984 (see eg s 38). Thus, it was put, there was an ouster of the Court’s jurisdiction.
[126] Reliance was placed on Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 which referred to the invalidity of contractual provisions which attempt to disable a party from resorting to the courts. At p 654 the High Court contrasted such provisions with positive provisions giving efficacy to the award of an arbitrator who might adjudicate upon private rights which might otherwise have been decided by the courts.
[127] Clause 27.17 does not effect an ouster. It binds the plaintiff contractually to CRI in respect of the outcome of the arbitral process between CRI and TIDC.
[128] Under cl 27.17(b)(iv) the plaintiff agrees to accept as a final resolution of a dispute or difference under the D&C Contract the outcome of a like dispute agreed or determined under the Development Deed.
[129] If the dispute is not agreed or determined within the terms of the Development Deed, the plaintiff would not be bound by it. The jurisdiction of the Court to determine that question is not ousted.
[130] As the High Court said in Dobbs v National Bank of Australasia Ltd, (at 654):
It is therefore a mistake to suppose that the policy of the law exemplified in the rule against ousting the jurisdiction of the Court prevents parties giving a contractual conclusiveness to a third person’s certificate upon which some matter upon which their rights and obligations may depend.
[131] The example then given is from Ex parte Young Re Kitchin [1881] 17 ChD 668 at 672, where a surety chooses to make himself liable to pay what a third person may say is the loss which the creditor has sustained. That position is in principle no different from the present case.
[132] The plaintiff fails with respect to its claim for relief based on improper ouster.
CONCLUSION
[133] The plaintiff’s claim fails. Its summons is dismissed with costs.
[134] The injunction granted by Einstein J and extended by me is dissolved.
[135] The exhibits may be returned.
FIRST SCHEDULE
THE DISPUTE RESOLUTION PROVISIONS IN THE D&C CONTRACT
27 DISPUTES
27.1 Notice of dispute
(a) If a dispute or difference arises between:
(i) the Developer and the CTI Infrastructure Works Contractor excluding that which will be decided under the Independent Certifier Deed or the TIDC Consent Deed; or
(ii) the Developer and the CTI Infrastructure Works Contractor’s Representative, in respect of any fact, matter or thing arising out of, or in any way in connection with, the CTI Infrastructure Activities, the CTI Infrastructure Works or this deed, or either party’s conduct before the date of this deed, the dispute or difference must be determined in accordance with the procedure in this clause 27.
(b) Where such a dispute or difference arises, either party may give a notice in writing to the Developer’s Representative and the other party specifying:
(i) the dispute or difference;
(ii) sufficient particulars of the party’s reasons for being dissatisfied to enable the other party and the Developer’s Representative to properly consider the matter; and
(iii) the position which, the party believes, is correct.
(c) If a party fails to provide sufficient particulars of the dispute or difference to enable the Developer’s Representative and the other party to properly consider the matter, then within 15 Business Days after receipt of the notice the Developer’s Representative may request the first party to provide further particulars of the dispute or difference.
27.2 Meeting
If a party gives a notice in writing to the Developer’s Representative and the other party under clause 27.1, within 5 Business Days of:
(a) the date of receipt by the Developer’s Representative of the notice; or
(b) where further particulars were required by the Developer’s Representative under clause 27.1, the date of receipt by the Developer’s Representative of the further particulars, the dispute or difference is to be referred to the persons described in Schedule 1 who must within 5 Business Days after the referral:
(c) meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference; and
(d) if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference.
27.3 Expert determination
If a dispute or difference is referred for resolution under clause 27.2 and is not resolved within 15 Business Days after the dispute or difference is referred to the persons described in Schedule 1, the dispute or difference must be submitted to an expert determination.
27.4 The expert
The expert determination under clause 27.3 is to be conducted by:
(a) an independent industry expert agreed by the Developer and the CTI Infrastructure Works Contractor; or
(b) where the parties are unable to agree upon an independent industry expert within 30 Business Days after the dispute or difference is submitted to expert determination under clause 27.3 or an independent industry expert appointed under this clause 27.4:
(i) is unavailable;
(ii) declines to act;
(iii) does not respond within 10 Business Days to a request by one or both parties for advice as to whether he or she is able to conduct the determination; or
(iv) does not make a determination within the time required by clause 27.9,
an independent industry expert appointed by the person specified in Schedule 1.
27.5 Not arbitration
An expert determination conducted under this clause 27 is not an arbitration and the expert is not an arbitrator. The expert may reach a decision from his or her own knowledge and expertise.
27.6 Rules of expert determination
The expert determination must be made in accordance with the rules for the expert determination process in Schedule 28 or such other rules as the expert may in his or her absolute discretion require.
27.7 Disclosure of interest
The expert must:
(a) disclose to the parties any interest he or she has in the outcome of the determination; and
(b) not communicate with one party to the determination without the knowledge of the other.
27.8 Costs
Each party will:
(a) bear its own costs in respect of any expert determination; and
(b) pay one-half of the expert’s costs.
27.9 Conclusion of expert determination
Unless otherwise agreed between the parties, the expert must notify the parties of his or her decision upon an expert determination conducted under this clause 27 within the period set out in the agreement between the parties and the expert referred to in clause 27.10(b).
27.10 Agreement with expert
(a) The expert will not be liable to the parties arising out of, or in any way in connection with, the expert determination process conducted under this clause 27, except in the case of fraud.
(b) The parties must enter into an agreement with the appointed expert on the terms prescribed by Schedule 29 or such other terms as the parties and the expert may agree.
27.11 Determination of expert
The determination of the expert:
(a) must be given to the parties in writing;
(b) will be:
(i) where appropriate, substituted for the relevant direction of the Developer’s Representative; and
(ii) final and binding,
unless a party gives a notice of appeal to the other party within 15 Business Days of receipt of the determination; and
(c) is to be given effect to by the parties unless and until it is reversed, overturned or otherwise changed under the procedure in the following clauses.
27.12 Arbitration agreement
If a notice of appeal is given under clause 27.11the dispute or difference must be determined in accordance with clauses 27.13 and 27.14 (and, if applicable, clause 27.17).
27.13 Executive negotiation
If a notice of appeal is given under clause 27.11 the dispute or difference is to be referred to the persons described in Schedule 1 who must:
(a) meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference; and
(b) if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference.
27.14 Arbitration
(a) If the persons described in Schedule 1 cannot resolve, or agree upon a procedure to resolve, the dispute or difference within 20 Business Days after the giving of the notice under clause 27.11, or within such longer period of time as these persons may agree in writing, the dispute or difference will be referred to arbitration.
(b) The arbitration will be conducted before a person to be:
(i) agreed between the parties; or
(ii) failing agreement within 20 Business Days after the giving of the notice under clause27.11, appointed by the President for the time being of The Institute of Arbitrators and Mediators Australia.
(c) To the extent that they are not inconsistent with this deed, the Rules for the Conduct of Commercial Arbitration of The Institute of Arbitrators and Mediators Australia will apply to the arbitration.
(d) The seat of the arbitration will be Sydney, Australia.
(e) The arbitrator will have power to grant all legal, equitable and statutory remedies and to open up, review and substitute any determination of an expert under clause 27.11.
27.15 Survive termination
This clause 27 will survive the termination of this deed.
27.16 Continuation of work
Despite the existence of a dispute or difference between the parties to this deed, the CTI Infrastructure Works Contractor must:
(a) continue to carry out the CTI Infrastructure Activities; and
(b) otherwise comply with its obligations under this deed.
27.17 Dispute resolution under the Development Deed and this deed
(a) The Developer and the CTI Infrastructure Works Contractor acknowledge and agree that:
(i) disputes or differences arising between:
(A) TIDC and the Developer in respect of the Development Deed may be concerned with like matters which also arise in respect of the respective rights and obligations of the Developer and the CTI Infrastructure Works Contractor under this deed; and
(B) the Developer and the CTI Infrastructure Works Contractor in respect of this deed may be concerned with like matters which also arise in respect of rights and obligations of TIDC and the Developer under the Development Deed;
(ii) subject to subclause (b) and subclause (c), disputes or differences concerning those matters contemplated in subclause (a)(i) must:
(A) not be resolved by reference to the dispute resolution procedures under both the Development Deed and this deed; and
(B) be conclusively resolved in accordance with the Development Deed; and
(iii) the Developer:
(A) will give to the CTI Infrastructure Works Contractor, in respect of those disputes of differences under clause 27 of the Development Deed where the CTI Infrastructure Works Contractor has an interest in the outcome, copies of all documents, information and other material given to or received from:
(I) the persons described in Schedule 1 of the Development Deed for the purpose of the meeting under clause 27.2 of the Development Deed;
(II) the expert under clause 27.4 of the Development Deed;
(III) the person described in Schedule 1 of the Development Deed for the purposes of the executive negotiation under clause 27.13 of the Development Deed; or
(IV) the arbitrator appointed under clause 27.14 of the Development Deed for the purposes of arbitration under that same clause; and
(B) will allow the CTI Infrastructure Works Contractor, at the CTI Infrastructure Works Contractor’s own cost, an opportunity to:
(I) attend any hearing held by the expert or other meeting between the parties and the expert in relation to the dispute or difference the subject of an expert determination under the Development Deed; and
(II) provide the Developer with draft submissions to be considered for inclusion as part of the Developer’s submissions in the expert hearing or meetings involving the expert or arbitration of the dispute or difference under clause 27.3 or clause 27.14 (as applicable) of the Development Deed,
in respect of those disputes or differences under clause 27 of the Development Deed where the CTI Infrastructure Works Contractor has an interest in the outcome.
Any draft submissions prepared by the CTI Infrastructure Works Contractor pursuant to paragraph (B)(II) above are, where at all practicable, to be provided to the Developer for consideration at least 5 Business Days before the Developer is due to make its submissions in the expert hearing or meetings involving the expert or arbitration (as the case may be).
(b) The Developer and the CTI Infrastructure Works Contractor agree that in respect of the objectives referred to in subclause (a):
(i) if there is a like issue for determination under both clause 27.3 of the Development Deed and clause 27.3 of this deed, any determination of the issue by an expert agreed by TIDC and the Developer or, alternatively, the expert appointed by the person specified in Schedule 1 to the Development Deed, will be binding on the CTI Infrastructure Works Contractor and the Developer (subject to subclause (c) below) without the need for a separate appointment or determination under this deed;
(ii) if there is a like issue for determination under both clause 27.14 of the Development Deed and clause 27.14 of this deed, and determination of the issue by an arbitrator agreed by TIDC and the Developer or, alternatively, the arbitrator appointed in accordance with clause 27.14(b) of the Development Deed, will be binding on the CTI Infrastructure Works Contractor and the Developer (subject to subclause (c) below) without the need for a separate appointment or determination under clause 27.14 of this deed;
(iii) the CTI Infrastructure Works Contractor must, at the CTI Infrastructure Works Contractor’s own cost, co-operate fully with, and reasonably assist, the Developer in the negotiations and dispute resolution procedures of any dispute or difference arising in respect of the Development Deed to the extent that the Developer and the CTI Infrastructure Works Contractor each have an interest in respect of the dispute or difference. Such co-operation and reasonable assistance will not extend to the provision of legal or other expert advice by the CTI Infrastructure Works Contractor to the Developer; and
(iv) subject to subclause (c), the CTI Infrastructure Works Contractor agrees to accept as a final resolution of a dispute or difference under this deed the outcome of a like dispute agreed or determined under the Development Deed. Without limiting the generality of the foregoing in this paragraph (iv), the CTI Infrastructure Works Contractor agrees to accept in full satisfaction of the entitlement, which it may have under this deed, the amount of the corresponding entitlement which the Developer has agreed or which has been determined under the Development Deed. Where the amount agreed or determined to be paid by TIDC under the Development Deed in respect of TIDC’s liability under the Development Deed is less than the CTI Infrastructure Works Contractors’ Claim under this deed:
(A) the CTI Infrastructure Works Contractor will waive any entitlement to the balance; and
(B) the CTI Infrastructure Works Contractors’ Claim for the balance is absolutely barred.
(c) The agreement by the CTI Infrastructure Works Contractor under subclauses 27.17(b)(i), (ii) and (iv) does not apply:
(i) to the extent that the non-recovery of any costs under subclause 00 is due solely to an act or omission of the Developer itself but excluding any act or omission arising in respect of any dispute resolution process; or
(ii) where, in respect of any settlement related to any dispute or difference arising in respect of the Development Deed which is concerned with a like matter which also arises in respect of the respective rights and obligations of the Developer and CTI Infrastructure Works Contractor under this deed, the Developer agrees to that settlement without first obtaining the prior agreement of the CTI Infrastructure Works Contractor to such a resolution; or
(iii) where, in respect of an expert determination or arbitration under the Development Deed related to any dispute or difference arising in respect of the Development Deed which is concerned with a like matter which also arises in respect of the respective rights and obligations of the Developer and CTI Infrastructure Works Contractor under this deed, the Developer, in making its submissions to the expert or arbitrator (as the case may be), has not taken due account of any draft submissions provided by the CTI Infrastructure Works Contractor in a timely manner pursuant to clause 27.17(a)(iii)(B) above.
SCHEDULE TWO
OTHER RELEVANT PROVISIONS OF THE D&C CONTRACT
DEFINITIONS AND INTERPRETATION
1.1 Definitions
“Date for Completion” means in respect of a Portion the date, or the last day of the period of time, specified in Schedule 1 for that Portion, as adjusted under this deed by an extension of time:
determined by the Independent Certifier under clause 16.10 or granted by the Developer’s Representative under clause 16.12;
determined pursuant to any expert determination or arbitration under clause 27; or otherwise deemed under clause 5.5.
“Date of Completion” means:
(a) the date of Completion of a Portion, set out in a Notice of Completion (or deemed to be determined under clause 18.1(g));
(b) where another date is determined in any expert determination or arbitration under clause 27 as the date upon which Completion was achieved, that date; or
the date otherwise deemed under clause 5.5.
“Independent Certifier” means:
(a) the person to be appointed pursuant to the Independent Certifier Deed;
15. Administration of CTI Infrastructure Works
15.1 Developer’s Representative
(a) The Developer must ensure that at all times until Final Completion there is a Developer’s Representative. Unless otherwise set out in this deed, the Developer’s Representative will give directions and carry out all its other functions under this deed as the agent of the Developer (and not as an independent certifier, assessor or valuer).
(b) The CTI Infrastructure Works Contractor must comply with any direction by the Developer’s Representative given under a provision of this deed. The Developer’s Representative may give a direction to the CTI Infrastructure Works Contractor concerning any aspect of the CTI Infrastructure Activities.
(c) Except where this deed otherwise provides, the Developer’s Representative may give a direction orally but will as soon as practicable confirm it in writing.
(d) The Developer must ensure that the Developer’s Representative acts reasonably in carrying out its functions under this deed, having regard to the Developer’s obligations under the Development Deed.
TIME AND PROGRESS
16.5 Importance of completion on time
(a) The CTI Infrastructure Works Contractor acknowledges:
(i) the importance of complying with its obligation under clause 16.1; and
(ii) that a Date for Completion will only be extended in accordance with clause 16.10 or clause 16.12, or when so determined under clause 27.
16.8 Claim for extension of time
To claim an extension of time the CTI Infrastructure Works Contractor must:
(a) within 20 Business Days of becoming aware or when it ought reasonably have become aware of the occurrence causing the delay, submit a written claim to the Independent Certifier and the Developer’s Representative (with a copy to TIDC’s Representative) for an extension of time to the relevant Date for Completion, which:
(i) gives detailed particulars of:
(A) the delay and the occurrence causing the delay; and
(B) the activities that are critical to the maintenance of progress in the execution of the CTI Infrastructure Activities; and
(ii) states the number of days extension of time claimed together with the basis of calculating that period, including evidence that the:
(A) conditions precedent to an extension of time in clause 16.9 have been met; and
(B) occurrence will delay it in achieving Completion in the manner described in clause 16.7; and
(b) if the effects of the delay continue beyond the period of 20 Business Days after becoming aware or when it ought reasonably have become aware of the occurrence causing the delay and the CTI Infrastructure Works Contractor wishes to claim an extension of time in respect of the further delay, submit a further written claim to the Independent Certifier and the Developer’s Representative:
(i) every 10 Business Days after the first written claim until after the end of the effects of the delay; and
(ii) containing the information required by paragraph (a).
The Independent Certifier and the Developer’s Representative may, within 5 Business Days of receiving the CTI Infrastructure Works Contractor’s claim or further claim for an extension of time for Completion, by written notice to the CTI Infrastructure Works Contractor, request additional information in relation to the claim or further claim. The CTI Infrastructure Works Contractor must, within 5 Business Days of receiving such request, if practically feasible, and otherwise as soon as reasonably possible, provide the Independent Certifier and the Developer’s Representative with the information requested.
16.9 Conditions precedent to extension of time
Subject to clause 16.14, it is a condition precedent to the CTI Infrastructure Works Contractor’s entitlement to an extension of time to any relevant Date for Completion that:
(a) the CTI Infrastructure Works Contractor gives the notices and claims required by clauses 16.6(b) and 16.8 as required by those clauses;
(b) the CTI Infrastructure Works Contractor complies with any request for additional information under clause 16.8 within the time required;
(c) the cause of the delay is beyond the reasonable control of the CTI Infrastructure Works Contractor;
(d) the CTI Infrastructure Works Contractor has demonstrated that it has used its reasonable endeavours to cooperate and coordinate with Other Contractors and Developer’s Contractors in accordance with clause 11.4 in respect of a claim for an extension of time which is based on an act or omission of an Other Contractor or Developer’s Contractor;
(e) the CTI Infrastructure Works Contractor is actually, or will be, delayed:
(i) prior to the Date for Completion of a Portion, other than Portion ICW 2, Portion ICW3A or Portion ICW3, by reason of one or more of the causes set out or referred to in clause 16.7(a)(i) in the manner described in clause 16.7(a)(i);
(ii) prior to the Date for Completion of Portion ICW 2, Portion ICW3A or Portion ICW3, by reason of one or more of the causes set out or referred to in clause 16.7(a)(ii) in the manner described in clause 16.7(a)(ii); or
(iii) after the Date for Completion of the Portion, by reason of an Act of Prevention or a Force Majeure Event in the manner described in clause 16.7(b); and
(f) the parties have not agreed to compress.
If the CTI Infrastructure Works Contractor fails to comply with the conditions precedent in this clause 16.9:
(g) the Developer will not be liable upon any Claim by the CTI Infrastructure Works Contractor; and the CTI Infrastructure Works Contractor will be absolutely barred from making any Claim against the Developer, arising out of or in any way in connection with the event giving rise to the delay and the delay involved.
16.10 Extension of time
(a) Subject to clauses 16.10(c), 16.11 and 16.13, if the conditions precedent in clause 16.9 have been satisfied, the relevant Date for Completion will be extended by a reasonable period determined by the Independent Certifier and notified to TIDC, the Developer and the CTI Infrastructure Works Contractor within 28 days after the latest of the:
(i) CTI Infrastructure Works Contractor’s written claim under clause 16.8; and
(ii) provision by the CTI Infrastructure Works Contractor of any additional information regarding the claim required under clause 16.8.
(b) A failure of the Independent Certifier to grant a reasonable extension of time to any Date for Completion or to grant an extension of time to any Date for Completion within 28 days will not cause an affected Date for Completion to be set at large, but nothing in this paragraph will prejudice any right of the CTI Infrastructure Works Contractor to damages against the Independent Certifier.
(c) With the exception of an Act of Prevention comprising:
(i) a breach of this deed by the Developer which is not also a breach by TIDC of the Development Deed;
(ii) an act or omission of the Developer or the Developer’s Representative (which is not also an act or omission of TIDC or TIDC’s Representative under the Development Deed) or an act or omission of the Developer’s Contractors; and
(iii) a Variation being the subject of a direction by the Developer’s Representative which is not also a Variation by TIDC’s Representative under the Development Deed,
the CTI Infrastructure Works Contractor is not entitled to an extension of time for any cause greater than the extension of time granted to the Developer under the Development Deed for that cause.
(d) Despite anything in this clause 16.10, if the Independent Certifier grants an extension of time for a delay event under the Development Deed, the Independent Certifier must grant an identical extension of time under this clause 16.10 for that delay event in response to any claim for such an extension by the CTI Infrastructure Works Contractor.
16.11 Reduction in extension of time
The Independent Certifier will reduce any extension of time to the relevant Date for Completion it would otherwise have determined under clause 16.10 to the extent that the CTI Infrastructure Works Contractor:
(a) contributed to the delay; or
(b) failed to take all steps necessary both to preclude the cause of the delay and to avoid or minimise the consequences of the delay.
16.12 Unilateral extensions
(a) Whether or not the CTI Infrastructure Works Contractor has made, or is entitled to make, a claim for an extension of time to any relevant Date for Completion, or is entitled to be, or has been, granted an extension of time to any relevant Date for Completion, under this clause 16, the Developer’s Representative may, in its absolute discretion, for any reason and at any time, from time to time by written notice to the CTI Infrastructure Works Contractor and the Developer, unilaterally extend any Date for Completion by any period specified in a notice to the CTI Infrastructure Works Contractor and the Developer.
(b) The Developer’s Representative is not required to exercise its discretion under this clause 16.12 for the benefit of the CTI Infrastructure Works Contractor.
(c) The discretion to grant an extension of time under this clause 16.12 may only be exercised by the Developer’s Representative and the exercise or failure to exercise that discretion is not a “direction” which may be opened up, reviewed or exercised by any other person in any forum (including any expert, arbitration or litigation proceedings).
(d) The operation of this clause 16.12 does not limit or otherwise affect the rights of the CTI Infrastructure Works Contractor under clause 16.10.
COMPLETION OF A PORTION
18.8 Completion and Final Completion binding
Without limiting clause 18.7, the parties agree that the Independent Certifier’s certification under clauses 18.1 and 18.2, with respect to Completion, and clause 18.6 with respect to Final Completion, is final and binding on the parties. No other determination of the Independent Certifier will be final and binding on the parties and the parties may, if they dispute the Independent Certifier’s determination, invoke the dispute resolution provisions contained in the Independent Certifier Deed.
GENERAL
32.7 Severability
If at any time any provision of this deed is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair:
(a) the legality, validity or enforceability in that jurisdiction of any other provision of this deed; or
(b) the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of this deed.
Clause 1.6 read together with Sch 1 provides that in the event of any inconsistency the Contracts prevail over the Independent Certifier Deed.
THIRD SCHEDULE
DISPUTE RESOLUTION PROVISIONS IN THE INDEPENDENT CERTIFIER DEED
DISPUTE RESOLUTION
13.1 Procedure for resolving disputes or differences
(a) The Parties agree that they will attempt to resolve all disputes or differences arising out of or in connection with this document or the Services in accordance with the procedures set out in this clause 13.
(b) It is a condition precedent to the referral of a dispute or difference to litigation that a Party first exhausts the procedures referred to in clause 13.2.
13.2 Negotiation
(a) If a dispute or difference arises, then a Party may give notice to the other parties to the dispute or difference, requesting that the dispute or difference be referred for resolution to the respective chief executive officers of those Parties (except in the case of the Security Trustee, the Senior Agent and the Mez Subscriber, to a person nominated by the respective chief executive officers who has authority to bind those respective Parties).
(b) A notice under paragraph (a) must:
(i) be in writing;
(ii) state that it is a notice under this clause 13.2; and
(iii) include, or be accompanied by:
(A) sufficient particulars of the Party’s reasons for being dissatisfied to enable the other parties to properly consider the matter; and
(B) the position which the Party giving the notice believes is correct.
(c) If a dispute or difference is referred to the persons referred to in paragraph (a) (Representatives), then the Representatives (or the persons for the time being acting in those positions) must within 5 Business Days of the date on which the notice under paragraph (a) is received (or such later date as the Parties to the dispute or difference may agree):
(i) meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference; and
(ii) if they cannot resolve the dispute or difference, endeavour to agree upon a procedure to resolve the dispute or difference.
(d) The joint decisions (if any) of the Representatives will be reduced to writing and will be contractually binding on the Parties to the dispute or difference.
13.3 Continue to perform
Notwithstanding the existence of a dispute or difference, the Independent Certifier must continue to perform the Obligations.
13.4 Final and binding
The Parties agree that it is not open under this document to overturn any decision of the Independent Certifier in respect of any of the contracts referred to in schedule 2 which under those contracts is expressed to be final and binding in nature.
FOURTH SCHEDULE
OTHER RELEVANT PROVISIONS OF THE INDEPENDENT CERTIFIER DEED
RECITALS
A. The Parties have entered into this document to appoint the Independent Certifier as the independent certifier for the purposes of the Chatswood Transport Interchange.
B. By entering into this document the Independent Certifier accepts its appointment under this document and its functions under this document, the CTI Development Deed, the CTI Infrastructure D&C Contract and the Finance Documents.
1. DEFINITIONS AND INTERPRETATIONS
1.1 Services means those services listed in schedule 2, as may be varied in accordance with clause 4.10.
3.1 Appointment of Independent Certifier
(a) Each of the other Parties appoints the Independent Certifier under this document to perform the Services.
(b) The Independent Certifier confirms its acceptance of the appointment referred to in paragraph (a) and agrees to perform the Services in accordance with the terms and conditions in this document.
4.1 Acknowledgments by Independent Certifier
The Independent Certifier acknowledges and agrees that:
(a) it has received a copy of the CTI Development Deed, the CTI Infrastructure D&C Contract, the TIDC Consent Deed, the Rail Safety Interface Agreement and the Finance Documents and:
(i) it has read and is familiar with the terms of those documents;
(ii) it has informed itself of the requirements of those documents in so far as they relate to the Services;
(iii) without limiting clause 4.1(a)(ii), it has informed itself of all time limits and other requirements for any function which the Independent Certifier must perform under those documents; and
(iv) it has informed itself of the correctness and sufficiency of the description of the Services.
GENERAL
15.8 Operation of this document
(a) Any right that a Party may have under this document is in addition to, and does not replace or limit, any other right that the Party may have.
(b) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
Schedule 2 provides, relevantly, as follows:
The obligations, roles, functions, duties and services of the Independent Certifier contemplated in the CTI Development Deed including: …
(b) administer extensions of time to the Date for Completion of each Portion of the CTI Infrastructure Works in accordance with clauses 16.8, 16.9,16.10 and 16.11 of the CTI Development Deed.
Order
Summons dismissed.
Counsel for the plaintiff: G Inatey SC with A Nicholls
Counsel for the first defendant: A Meagher SC with G Rich
Counsel for the second defendant: B Oslington QC with L V Gyles
Solicitors for the plaintiffs: Colin Biggers & Paisley
Solicitors for the first defendant: Clayton Utz
Solicitors for the second defendant: Blake Dawson Waldron
