of the contract, which took priority in the priority of documents clause in the subcontract. The Court sided with CDL, finding that E.ON bore the risk of unforeseen ground conditions. The priority clause didn’t even come into play as the Court found there to be no inconsistencies within the contract. Instead, the Court held that the construction work in question did not form part of the scope of subcontract work because this work had been expressly excluded in the appended documents. This meant that E.ON could not rely on the broad risk allocation clause in the main contract terms nor could it rely on the priority clause to avoid bearing the risk and cost of this additional work. CDL v E.ON demonstrates how parties cannot rely on a priority clause to address contractual interpretation issues where there is no inconsistency found. The case highlights the importance of parties taking time to really understand what the documents being appended to the contract actually mean and how they affect the application of the main contract terms. In this case, it was evident that the post-tender clarifications put the risk of adverse ground conditions on E.ON, whether or not this is what E.ON intended its commercial position to be. An earlier UK case, MT Højgaard AS v E.ON Climate and Renewables3 (MT Højgaard v E.ON) is more commonly known for its discussion of fitness for purpose; however also highlights the risk of appending technical documentation to a contract without being fully aware of its contents. Again, the Court in this case found no inconsistencies within the contract documents and instead used the basic principles of contractual interpretation to determine the contract’s effect. Here the contractor, MT Højgaard, argued that an onerous obligation requiring the foundations of an offshore windfarm be designed to ensure a lifetime of 20 years, should not be given effect because it was only found in a relatively obscure part of the tender documents and not spelled out in the prioritised contract conditions on design quality. However, the Court found that because the terms of the contract clearly included the tender documents, the parties must have intended that the onerous obligation would be given contractual effect. The contractor also tried to argue that because the prioritised conditions of the contract imposed other obligations with respect to the quality of the design and build, the parties must not have intended that a more stringent obligation in the tender documents would be given effect. This argument was rejected as it would render meaningless the requirement that the foundations be designed to ensure a lifetime of 20 years. The contractor had therefore breached the contract and was liable for the cost of remedying the foundations. Application to New Zealand There is no analogous New Zealand case law to draw from. However, given the New Zealand courts follow the same approach to contract interpretation as the UK courts, it is highly likely that the UK cases mentioned above would apply to any analogous case heard in New Zealand. It is entirely possible that a case of this nature could arise in New Zealand, particularly in the construction context where numerous technical