Page 2 of 6On 26 July 2014 Coin Builders Ltd (Coin) entered into a contract with Rosen Supply &Services (Rosen) to demolish a 5-storey building known as the ‘Rosen Building’, and toregrade the site and do the preliminary civil works. The site is located in a suburb of Sydney,NSW. The project was to have been completed in 24 months and Coin was to be paid $4million.History of the TenderIn late May 2014, Coin had responded to an invitation to tender from Rosen for thedemolition and site regrading for the Rosen Building. Specifically, the invitation to tender,which was advertised in the newspaper, read:Project: Demolition of the Rosen Building, breaking up of the paved parking area,removal of all debris and filling of the basement void and other associated civilworks.On 10 June 2014 Coin received from Rosen the tender package, which included blueprints ofthe Rosen Building, 4 contract drawings, the specifications, the contract and the tender form.The 4 contract drawings were as follows:a. Site Outline – a basic outline of the Rosen Building and existing conditions at thesiteprior to demolition.b. Site Plan – rough grading, which indicated the rough grade elevations to which Coinwas to grade the site and the final grade elevations.c. Civil works- drawings indicating the associated civil works required.d. Site Sections – which included an outline of some existing items to be demolished andremoved from the site.A pre-tender meeting was held on 3 July 2014. Rosen’s project manager (Bill) and Coin’sproject manager (Dave) attended. At that meeting Dave asked how much of the retaining wallwas to come down and were there any other problems with the site. He was told “no worriesmate it’s a good site but you need to read the drawings”. Dave also visited the site.Based on this conversation Coin decided to allow for normal excavation with rock notoccurring above 3.0 meters from the surface.In the tender document submitted by Coin, Coin certified that Coin had visited the site andbecome fully conversant with conditions required to perform the work of the contract; that ithad satisfied itself of the suitability, quality and quantity of surface and sub-surface materialto be encountered and that any failure to do so would not relieve it of the responsibility ofperforming the work. This certificate was attached as an appendix to the contract.Tenders closed on 12 July 2014. Coin was the successful bidderPage 3 of 6Extracts from the commercial conditions of contract are set out below:18 Entire Agreement.The parties intend that this agreement, together with all attachments, schedules, exhibits, andother documents that are referenced in this agreement and refer to this agreement:a. represent the final expression of the parties’ intent and agreement between theparties relating to the subject matter of this agreement,b. contains all the terms the parties have agreed to relating to the subject matter, andc. replaces all the parties’ previous discussions, understandings, and agreementsrelating to the subject matter.19 Direction of variationsThe Subcontractor shall not vary Work under the Subcontract (WUS) except as directed inwriting by the Subcontract Superintendent pursuant to this subclause 19.The Subcontract Superintendent, before the date of practical completion, may direct theSubcontractor to vary WUS by any one or more of the following which is nevertheless of acharacter and extent contemplated by, and capable of being carried out under, the provisionsof the Subcontract (including being within the warranties):(a) increase, decrease or omit any part;(b) change the character or quality;(c) change the levels, lines, positions or dimensions;(d) carry out additional work;(e) demolish or remove material or work no longer required by the Main Contractor.No direction by the Subcontract Superintendent shall constitute a direction under thissubclause 19 unless it is in writing and expressly states that it is a direction undersubclause 19.20. WaiverAny waiver or relaxation by The Principal or The Superintendent partly or wholly of anyprovision of or right relating to the Subcontract is valid only if in writing and signed by ThePrincipal. Any such waiver or relaxation is restricted to its written terms and unless expresslystated otherwise applies to a particular occasion only, is not continuing and does not constitutea waiver or relaxation of any other provision or right.22 Subcontractor may give notice of VariationIf the Subcontractor considers that any Direction or other event or circumstance involves aVariation, then the Subcontractor must, as a condition precedent to any Entitlement arising outof, or in connection with, the relevant Direction, event or circumstance, within two (2) BusinessDays of receipt of the Direction or the occurrence of the other event or circumstance (asapplicable), and in any event prior to acting upon the Direction, event or circumstance, so notifyThe Principal by a written notice titled “Clause 22 Notice of Claimed Variation”. This noticemust state the reasons for the Subcontractor’s opinion. If the Subcontractor fails to satisfy thecondition precedent referred to above, the Subcontractor shall have no Entitlement, andreleases the Principal from any claim, arising out of, or in connection with, the relevantDirection, event or circumstance.Page 4 of 623 Claim for extension of timeSubject to the Subcontractor complying with its obligations under subclause and 23.1 and23.2, the Subcontractor shall be entitled to such extension of time as the Superintendentassesses.23.1 Form of claim for an extension of timeA claim for an extension of time must:(i) be submitted by the Subcontractor to The Superintendent within the 3 Business Days ofthe commencement of the event, occurrence or matter causing the delay;(ii) be titled “Extension of Time Claim”; and(iii) identify in detail the following items:(iv) the extent or likely extent of the delay;(v) the cause of delay (including evidencing the facts of causation);(vi) the critical activity or activities delayed or which may be delayed;(vii) how the cause of delay impacted or is expected to impact upon the criticalactivitydelayed; and(viii) the measures which the Subcontractor has adopted or proposes to adopt to overcome orminimise the consequences of the cause of delay.23.2 Conditions precedent to extension of timeIt is a condition precedent to the Subcontractor’s entitlement to an extension of time to theDate for Practical Completion that:(a) the cause be a qualifying cause of delay;(b) the Subcontractor has not caused or contributed to the cause of the delay;(c) the Subcontractor has promptly, competently and prudently taken all practicable measuresto avoid or minimise the cause and effects of the delay;(d) if the delay continues for 10 working days the Subcontractor must provide a notice in theform outlined in clause 23.1 and entitled continuing claim for delay. The Subcontractorshallsubmit a similar notice for each subsequent 10 days the delay continues;(e) have complied with clause 23.1;23.3 Qualifying cause of delayA Qualifying cause of Delay means:(a) any default of the Subcontract Superintendent, the Main Contractor or its consultants,agents or other contractors;(b) any default of the Superintendent, the Principal or its consultants, agents or othercontractors Subcontractor;(c) An instruction, issued by the Superintendent ,including an instruction which is found to bea variation, which impacts on the critical path;(c) other than:(i) a breach or omission by the Subcontractor;(ii) industrial conditions or inclement weather occurring after the date for practicalcompletion;Payment Claim InformationThe date for submission of a progress claim is the 24th of each month and payment of thisclaim is required by the 15th of the next month.QUESTIONS1. a) On commencing work Coin found:a. Rock at a depth of 1.0 meters.b. The site was contaminated with asbestos.This resulted in considerable extra costs.Your claim for extra costs was rejected by the Superintendent who cited clause 18 and theappendix containing Coins certificate regarding the site.You are asked by Dave if he should declare a disputeAssuming you met the notice period requirements Advise Dave if have any avenues of claimand if so what are they. Please discuss in detail the strengths and weaknesses of your potentialaction.b) You find Rosen were in possession of a soils report which showed rock at a depth of 1.0meter and the asbestos. However, this was sent to Rosen’s geology department andRosen’sproject team were not aware of its existence.Would this modify the likelihood of success of your claim and if so why? (Discuss in detail).Would it make a difference if Rosen’s project manager had sent a company wide email askingfor all available information of the site and received no response from the geology department?
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