Boulus Constructions Pty Ltd v Warrumbungle Shire Council

1. [1]

   On 10 August 2017 the plaintiff, Boulus Constructions Pty Ltd, entered into a contract (“the Contract”) with the defendant, Warrumbungle Shire Council, to construct retirement units, a community centre and a learning centre to be known as the “Three Rivers Regional Retirement Community” on the site of the old Dunedoo Hospital for a lump sum of some $6.87 million (“the Contract Price”).

2. [2]

   Boulus claims damages for breach of the Contract and for misleading or deceptive conduct contrary to s 18 of the Australian Consumer Law. [1]

3. [3]

   The matter is set down for hearing for 20 days commencing on 5 July 2021.

4. [4]

   I have conducted directions hearings in relation to the matter on 9 October 2020, 16 October 2020 and again on 10 December 2020.

5. [5]

   One matter that has been debated at those directions hearings is amendments that Boulus wishes to make to its Technology and Construction List Statement.

6. [6]

   Boulus has now circulated the most recent iteration of the proposed amendments to the List Statement, being “Version 4” of a proposed Amended Technology and Construction List Statement.

7. [7]

   Boulus seeks leave to amend the List Statement to allege that:

8. [8]

   Boulus also pleads the loss it has suffered on these alternative bases. For the reasons that follow, it is not necessary for me to consider those matters.

9. [9]

   The pleading in proposed paragraph 8C is a “no transaction case”.

10. [10]

    Evidently, proposed paragraph 8B is intended to be an “alternative transaction case”; or, as Mr Campbell, who appears for Boulus, described in his submissions, a “more advantageous” or “better” contract case.

11. [11]

    This is made clear by these submissions from Mr Campbell:

12. [12]

    The passages I have emphasised in this submission show that Boulus contends for a “different” or “better” transaction case; and, alternatively, for a “no contract case”.

13. [13]

    As Mr Campbell accepts in this submission, to prove that the parties would have entered a contract that was from Boulus’s point of view “better” than the Contract, Boulus would have to “show that the [Council] would have accepted [Boulous’s] revised tender”: that is, the Counterfactual Tender.

14. [14]

    To make out a “different” or “better” contract case, Boulus would have plead the facts on which it relies to show that the Council would have accepted the Counterfactual Tender, and thus enter the Counterfactual Contract

15. [15]

    It is evident from Mr Campbell’s submission that Boulus is not in a position to do this. Thus, Mr Campbell stated in the words I have emphasised, that this will depend on the Council’s evidence in reply, absent which it is “difficult to make any determination of the issue at the current juncture”.

16. [16]

    In any event, the proposed pleading is not of a “different” or “better” transaction. case. What is proposed to be pleaded at 8B is, in effect, a “hypothetical transaction case”. That is a case assuming, but without asserting, that the Council would have accepted the Counterfactual Tender.

17. [17]

    As Boulus is not in a position to plead that the Council would have accepted the Counterfactual Tender, Boulus cannot hedge its bets by pleading what it would have done “if” the Council had done so; hoping for the Council to adduce evidence sufficient for it to plead that the Council would in fact have done so.

18. [18]

    I am not prepared to permit Boulus to plead its case in this speculative fashion.

19. [19]

    Boulus also seeks to amend its List Statement to allege that the Representations became express terms of the contract or, alternatively, that the contract should be rectified to include them.

20. [20]

    Mr Feller SC, who appears for the Council, submitted that such a pleading could not be reconciled with cl 7(1) of the Contract which provided:

21. [21]

    However, the expression “Contract Document” is defined to include “Principal’s Documents” which is itself defined to include:

22. [22]

    The relevant representations are alleged to be included in meeting minutes of 22 February 2017 which arguably, fall within this definition. I therefore propose to allow the amendment so far as concerns an express term.

23. [23]

    Further, at least arguably, the clause to which I have referred at [20] would not stand in the way of rectification, if requirements for rectification were made out. [2]

Conclusion

1. [24]

   I therefore propose to grant leave to Boulus to amend its List Statement by pleading the matter summarised at [19]-[23] above.

2. [25]

   I refuse to grant Boulus leave to amend to plead the matters summarised at [7]-[18] above.

3. [26]

   The parties should confer and agree on the orders necessary to give effect to these reasons, including in relation to any consequential amendments that should be made to the Summons and to Boulus’s defence the Council’s Cross Claim.

4. [27]

   Boulus is to pay the Council’s costs thrown away by the amendment.

5. [28]

   If Boulus wishes to propound any further amendment to its List Statement, it should do so by Notice of Motion filed in the usual way, supported by an affidavit explaining why any further application to amend should be entertained.