the global loss claim does not fail simply because the tender was under-priced by £50,000.00; the consequence would simply be that the global loss is reduced by £50,000.00 because the claimant contractor has not been able to prove the £50,000.00 at the global loss would not have been incurred in any event…
f) Obviously, there is no need for the Court to go down the global or total cost route if the actual cost attributable to individual loss causing events can be readily or practically determined…
g) DMW’s Counsel argument that a global award should not be allowed where the contractor has himself created the impossibility of disentanglement (relying on Merton per Vinelott J at 102, the penultimate paragraph and John Holland per Byrne J at page 85) is not on analysis supported by those authorities and is wrong.
Akenhead J then turns to the facts of the Walter Lilly case by summarising it in the following way.
This project was, essentially, a complete mess from the administrative side on the part of DMW and its professional team. The job started with remarkably little design, there were hundreds of variations, there was throughout the project hopelessly late provision of information and instructions to WLC, (...) it was virtually impossible sensibly to programme all of the works because it was not known what work and with what detail it would be ordered; this period was also confused by unsubstantiated hints that Mr MacKay might omit yet further work.
About Derek Firth
Derek is an Auckland Barrister practicing as an arbitrator, mediator and adjudicator. He is a Fellow of AMINZ and a Fellow of the Chartered Institute, UK. He is one of the leading dispute resolution practitioners in New Zealand, particularly in construction, property and commercial disputes. He is also the NZ Alternate Director of the ICC International Court of Arbitration (Paris).
To learn more about Derek Firth, please visit the Building Disputes Tribunal website.
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