DISTRICT COURT OF QUEENSLAND

CITATION: HVAC (Qld) Pty Ltd v Xception Pty Ltd [2011] QDC 22

PARTIES: HVAC (QLD) PTY LTD

(Applicant)

V

XCEPTION PTY LTD

(Respondent)

FILE NO/S: BD4034/10

PROCEEDING: Originating application

ORIGINATING

COURT: District Court, Brisbane

DELIVERED ON: 2 March 2011

DELIVERED AT: Brisbane

HEARING DATE: 23 February 2011

JUDGE: R Jones DCJ

ORDER:

CATCHWORDS: CONTRACTS – Subcontract – agreement for supply of delivery and installation of mechanical services – statutory regulation of entitlement to and recovery of progress payments – claim for payment under the Building and Construction Industry Payments Act 2004 – application for summary judgment – existence of arguable defences under s 52 of the Trade Practices Act 1974 and/or estoppels

RESPONDENT ALLEGED APPLICANT HAD ENGAGED IN MISLEADING AND DECEPTIVE CONDUCT – Whether There is an Arguable Case for Breach of s 52 of Trade Practices Act 1974 (Cth) – whether summary judgment should be given

ESTOPPEL – Respondent Alleged Estoppel Based on a Course of Conduct – whether estoppel available as a defence to an application for judgment on a payment claim

Building and Construction Industry Payments Act 2004 ss 17, 18, 19, 99, 103

Trade Practices Act 1974 (Cth) s 52

Uniform Civil Procedure Rules 1999 r 292

Millers Annotated Trade Practices Act 27th Ed 2006

Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232.

Dimagogue Pty Ltd v Ramensky (1992) 39 FCR 31

Neumann Contractors Pty Ltd v Transpunt No. 5 Pty Ltd [2010] QCA 119

Equity Access Pty Ltd v Westpac Banking Corp (1990) ATPR 40 - 994 at 50,950; (1989) 16 IPR 431.

Minimax Fire Fighting Systems Pty Ltd v Bremore Engineering (WA) Pty Ltd & Ors [2007] QSC 333

Parksdale Custombuilt Furniture Pty Ltd v Puxu Pty Ld (1982) 149 CLR 191

State Of Queensland v Nixon (2002) QSC 296

Swaine v Hillman [2001] 1 All ER 91 at 92.

COUNSEL: M. Williams for the applicant

M. Hindman for the respondent

SOLICITORS: McKays Solicitors for the applicant

Sawford Lawyers for the respondent

[1] The application before the court is for judgment in favour of the applicant for an amount of $494,327.35 or, in the alterative, in the amount of $152,886.99. The application is brought pursuant to s 19(2)(a)(i) of the Building and Construction Industry Payments Act 2004 (the Act).

Summary of facts

[2] HVAC (Qld) Pty Ltd (the applicant) is licensed under the Queensland Building Services Act 1991 (QBSA) to supply and install refrigeration, air conditioning and other mechanical services. Xception Pty Ltd (the respondent) is a licensed contractor under the QBSA. On or about 28 July 2009 the applicant was engaged by the respondent to supply, deliver and install mechanical services at the Friendly Society Private Hospital at Bundaberg. There is no dispute that the subcontract agreement was a “construction contract” within the meaning of the Act.

[3] There is also no dispute that between 1 September 2009 and 27 October 2010 the claimant carried out “construction work” within the meaning of the Act at the hospital and was entitled to make progress claims and recover those claims (if need be) by way of “payment claims” under the Act.

[4] The initial subcontract price was $1,892,000, inclusive of Goods and Services Tax. During the course of the subcontract work carried out by the applicant, it issued 11 claims for payment between 28 September 2009 and 25 August 2010. All of the claims adopted the same basic format, although not all were endorsed as being a claim made under the Act.

[5] The claimant made its last claim for payment (Claim 13) on 22 November 2010. The amount claimed was $569,985.94 for mechanical services provided by the claimant. Of that amount, the sum of $432,503.01 was claimed as “variations”. Under the claim, payment was required within 30 days and the claim was stated to be a payment claim made under the Act.

[6] On or about 2 December 2010 the respondent paid to the claimant the amount of $75,558.59, leaving the balance outstanding. The respondent contends that this payment was the result of a mistake on its part.

[7] It is not disputed that the payment claim was received by the respondent on 22 November 2010.

The Building and Construction Industry Payments Act 2004

[8] Section 17 of the Act provides:

“ 17 Payment claims

(1) A person mentioned in section 12 who is or who claims to be entitled to a progress payment (the claimant ) may serve a payment claim on the person who, under the construction contract concerned, is or may be liable to make the payment (the respondent ).

(2) A payment claim –

(a) must identify the construction work or related goods and services to which the progress payment relates; and

(b) must state the amount of the progress payment that the claimant claims to be payable (the claimed amount); and

(c) must state that it is made under this Act.

(3) The claimed amount may include any amount –

(a) that the respondent is liable to pay the claimant under section 33(3); or

(b) that is held under the construction contract by the respondent and that the claimant claims is due for release.

(4) A payment claim may be served only within the later of –

(a) the period worked out under the construction contract; or (b) the period of 12 months after the construction work to which the claim relates was last carried out or the related goods and services to which the claim relates were last supplied.

(5) A claimant cannot serve more than 1 payment claim in relation to each reference date under the construction contract.

(6) However, subsection (5) does not prevent the claimant from including in a payment claim an amount that has been the subject of a previous claim.”

[9] Section 18 provides:

“ 18 Payment schedules

(1) A respondent served with a payment claim may reply to the claim by serving a payment schedule on the claimant.

(2) A payment schedule –

(a) must identify the payment claim to which it relates; and

(b) must state the amount of the payment, if any, that the respondent proposes to make (the scheduled amount ).

(3) If the scheduled amount is less than the claimed amount, the schedule must state why the scheduled amount is less and, if it is less because the respondent is withholding payment for any reason, the respondent’s reasons for withholding payment.

(4) Subsection (5) applies if –

(a) a claimant serves a payment claim on a respondent; and

(b) the respondent does not serve a payment schedule on the claimant within the earlier of –

(i) the time required by the relevant construction contract; or

(ii) 10 business days after the payment claim is served.

(5) The respondent becomes liable to pay the claimed amount to the claimant on the due date for the progress payment to which the payment claim relates.”

[10] Section 19 provides:

“ 19 Consequences of not paying claimant if no payment schedule

(1) This section applies if the respondent –

(a) becomes liable to pay the claimed amount to the claimant under section 18 because the respondent failed to serve a payment schedule on the claimant within the time allowed by the section; and

(b) fails to pay the whole or any part of the claimed amount on or before the due date for the progress payment to which the payment claim relates.

(2) The claimant –

(a) may –

(i) recover the unpaid portion of the claimed amount from the respondent, as a debt owing to the claimant, in any court of competent jurisdiction; or

(ii) make an adjudication application under section 1(1)(b) in relation to the payment claim; and

(b) may serve notice on the respondent of the claimant’s intention to suspend, under section 33, carrying out construction work or supplying related goods and services under the construction contract.

(3) A notice under subsection (2)(b) must state that it is made under this Act.

(4) If the claimant starts proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount from the respondent as a debt –

(a) judgment in favour of the claimant is not to be given by a court unless the court is satisfied of the existence of the circumstances referred to in subsection (1); and

(b) the respondent is not, in those proceedings, entitled –

(i) to bring any counterclaim against the claimant; or

(ii) to raise any defence in relation to matters arising under the construction contract.”

[11] The payment claim being received on 22 November 2010 meant that, pursuant to s 18 of the Act, if the respondent wanted to withhold payment for any reason it had to serve a payment schedule on the claimant within 10 business days therefrom. The consequences of failing to serve such a payment schedule are set out in s 19 of the Act. Mr Derbyshire deposes to the reasons for this delay and they will be addressed below. Mr Derbyshire is a director of the respondent and relevantly his role included negotiating variation claims with subcontractors such as the applicant.

[12] In Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd & Ors [2011] QCA 22 White JA said:

“56. Part 3 Div 1 sets out the procedure for recovering progress payments. A person who claims to be entitled to a progress payment, described as the claimant, may serve a payment claim on the person who, under the construction contract, is or may be liable to make the payment, described as the respondent. A payment claim must identify the construction work or related goods and services to which it relates, the amount of the progress payment said to be payable and state that it is made under the Payments Act.

57. A respondent who is served with a payment claim may reply to that claim by serving a payment schedule on the claimant. It must identify the payment claim to which it relates and the amount of the payment, if any, which the respondent proposes to make. If that amount is less than the amount claimed, the payment schedule must state why the amount is less and, if it is less because the respondent is withholding payment for any reason, the reasons for withholding that payment. If a claimant serves a payment claim on a respondent and the respondent does not serve a payment schedule within the earlier of the time required by the construction contract or 10 business days after receipt of the payment claim, the respondent becomes liable to pay the claimant amount to the claimant on the due date for the progress payment. If the respondent fails to pay the whole or any part of the claimed amount, the claimant may recover the unpaid portion of the claimed amount from the respondent as the debt owing in any court of competent jurisdiction, or make an adjudication application.”

(footnotes deleted)

[13] The scheme of the Act emphasises speed and informality.

[14] In his written submissions Mr Williams, counsel for the applicant, in paragraph 6 states:

“The respondent, in its payment schedule, advanced five reasons why the procedure, mandated by the Act, should not be followed in this case, namely that (using the order advanced in the payment schedule):

(a) the payment claimed did not sufficiently identify the construction work to which it related;

(b) it did not comply with the requirements of the contract for a valid progress claim;

(c) it was not validly served;

(d) it did not relate to a relevant “reference date” under the Act; and

(e) the conduct of the applicant upon delivery of the payment claim, allegedly misled the respondent to believe that it did not have to serve a payment schedule within the time required by the Act.”

[15] Mr Williams’ summary was not challenged. However, at the hearing of the application all but the issues raised in subparagraph (e) were not pressed. Ms Hindman, counsel for the respondent, candidly conceded that if she did not succeed in convincing the court that her client had arguable defences to the claim, then the claimant was entitled to judgment. In paragraph 1 of her written submissions Ms Hindman stated:

“The respondent contends that this matter cannot be determined in the summary manner and directions ought be made for the eventual hearing of the contentious factual issue of whether the applicant engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (or alternatively, whether an estoppel operates against the applicant) in respect of the delivery of the payment claim the subject of the application.”

[16] While the estoppel point was not abandoned at the hearing of the application, argument really centred on whether or not the respondent had an arguable defence under s 52 of the Trade Practices Act 1974 (Cth) (TPA).

[17] Under s 19(4) of the Act, when a claimant starts proceedings under subsection (2)(a)(i) to recover the unpaid portion of the claimed amount as a debt, the respondent is not entitled to bring any counterclaim against the claimant or to raise any defence in relation to matters arising under the construction contract. That, however, does not prevent the claimant from raising defences which do not arise under the construction contract. In Neumann Contractors Pty Ltd v Transpunt No. 5 Pty Ltd Muir JA, with Holmes and Chesterman JJA agreeing, said:

“… it is essential, in my respectful opinion, to have regard to the words of s 19(4) in determining whether or not it prevents a defence being raised. It prohibits a respondent to a payment claim, who has failed to duly serve a payment schedule, from bringing a counterclaim against the claimant, or from raising ‘any defence in relation to matters arising under the construction contract’. The prohibition is not against the raising of any defence whatsoever.”

[18] In Neumann Contractors the appellant succeeded in having summary judgment made in the court below set aside, as the Court of Appeal considered that arguable defences existed, including under s 52 of the TPA and/or estoppel.

The appropriate test

[19] In Neumann Contractors the originating court was concerned with an application for judgment brought under s 19(2)(a)(ii) of the Act. During the hearing for summary judgment, notwithstanding the fact that the application was brought under s 19 of the Act, both parties treated the application as an application for summary judgment under r 292 of the Uniform Civil Procedure Rules 1999. That that was the correct approach to such an application was endorsed by the Court of Appeal. Muir JA said:

“The utilisation of rules such as r 292 is to be encouraged, but the application must conform with ‘… the general principle … that issues raised in the proceedings are to be determined in a summary way only in the clearest of cases’.

In Rich v CGU Insurance Ltd , Gleeson CJ, McHugh and Gummow JJ cited with approval the following passage from the reasons of Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde :

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways but all of the verbal formulae which have been used are intended to describe a higher degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial in the ordinary way.’” (footnotes deleted)

[20] Chesterman JA stated:

“The case was unsuitable for any summary assessment of whether there were real, as opposed to fanciful, prospects of a successful defence. I maintain the opinion that ‘the only safe principle to apply when dealing with applications … for a summary judgment is that … a claim which has “no real prospects of succeeding” is one which is “hopeless” or one which is “bound to fail”.’”

His Honour also referred to the Court of Appeal decision of Deputy Commissioner of Taxation v Salcedo .

[21] In Salcedo Williams JA cited with approval the observations of Lord Woolf MR:

“The words ‘no real prospect of succeeding’ do not need any amplification, they speak for themselves. The word ‘real’ distinguishes fanciful prospects of success or … they direct the court to the need to see whether there is a ‘realistic’ as opposed to a ‘fanciful’ prospect of success.”

And at paragraph 14, went on to say:

“This court approved that approach in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in Liq) (2003) 1 Qd R 259. There, Holmes J with the concurrence of Davies JA and Mullins J, speaking of r 293(2) and the expression ‘no real prospect of succeeding’, said at 264-5:

‘That level of satisfaction may not require the meeting of as high a test as that posited by Barwick CJ in General Steel:

“That the case for the plaintiff is so clearly untenable that it cannot possibly succeed”.

The more appropriate enquiry is in terms of the rule way itself: that is, whether there exists a real, as opposed to a fanciful, prospect of success. However, it remains without doubt the case that: “ great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case. ”’” (emphasis added)

The defences

[22] In his affidavit Mr Derbyshire states:

“I did not consider Payment Claim 13 to be a complete or formal payment claim at the time it was received, and especially not a payment claim that required a payment schedule to be given under the Act. It was only when I consulted the respondent’s lawyers … that the respondent decided, out of caution, to issue a payment schedule, even though more than 10 business days had elapsed.

I am familiar with the Building and Construction Industry Payments Act and the strict timeframes for delivering documents such as payment schedules and adjudication applications. Had I received what I thought was a complete and formal payment claim under the Act from the applicant, I certainly would not have allowed 10 business days to pass without a payment schedule being submitted by the respondent in response.”

[23] I note here that it would appear that the claimant lawyers at least considered the claim to be sufficient to warrant a payment schedule being served notwithstanding the fact that it was out of time, even if only out of an abundance of caution.

[24] The facts and circumstances causing Mr Derbyshire to think that the payment claim was not a “complete or formal payment claim” are deposed to in his affidavit and are summarized in the written submissions of Miss Hindman in the following terms:

“The matters (as they currently stand before a final hearing at which the witnesses may be cross examined) relied upon by the respondent to establish the applicant’s breach are –

a. The applicant directed the payment claim to Mr Derbyshire in circumstances where all prior payments claims (and progress claims for that matter) had been directed to (and dealt with by) Kevin Gush (Construction Manager) and/or Pauline Anderson (Contracts Administrator).

b. The covering email did not describe the attached documents as a payment claim (enlivening the Act) but instead provided–

‘I have attached the summary of the works complete and the variation amounts for you to review in our usual claim format.’

combined with the first matter, the clear inference was that what was provided was a working document only, not a formal claim under the Act.

c. The covering email went on to provide–

‘Due to the size of the files – I will put the revised variations and supporting documentation in the post for you on a CD.’

That again supports the inference that only a working document (and an incomplete one at that) had been provided, not a formal payment claim under the Act.

d. The covering email further provided–

‘Can I recommend that we call a meeting – onsite – to walk through each and every one of the variations so that the appropriate evaluation of the claim can be made’.

That again supports the inference to be drawn as above.”

[25] The last of the dates proposed by Mr Carter for an onsite meeting included “any day from Dec 6 onwards”. This period fell outside the time limit for the serving of any payment schedule. Further conduct on the part of the applicant is also relied on including that the applicant did not advise the respondent in a timely manner that in fact no further documents were to be provided and the respondent should proceed as if the documents received under the cover of the email dated 22 November 2010 were a complete payment claim under the Act.

[26] Given the importance placed on the email sent by Mr Carter on 22 November 2010 I consider it appropriate to set it out in full. It is addressed to Mr Derbyshire and forwarded to a Mr Paul Carroll and a Mr Brad Richards, employees of the applicant. The subject matter is identified as HVAC Variations and the importance level stated as “high”. The attachments to the email are described as “Claim 13–17 13 October 2010. pdf; Claim 13-17 13 October 2010 Breakup. pdf”. The email goes on to say:

“Mark,

Please accept my apologies for the length of time to redo the variations in the format requested. As you can appreciate with the amount of information on this project and the previous response from the architect – it has been a time consuming exercise. This is the last time I want to have to document the variations.

I have attached the summary of the works completed and the variation amounts for you to review in our usual claim format. We believe the attached documents are a precise evaluation of the works completed as at 27th of October 2010 (our last claim date under the contract).

Due to the size of the files – I will put the revised variations and supporting documentation in the post for you on a CD.

Can I recommend that we call a meeting – onsite – to walk through each and every one of the variations so that the appropriate evaluation of the claim can be made. I think it is important to do this onsite – so that the full extent of the works can be demonstrated. I would suggest that exception, BCA, and the architect are all in attendance.

I am unable to make site this week due to pre commitments – however can make it on November 30, Dec 1 or Dec 2 or any day from Dec 6 onwards.

We would like to have this resolved as a minimum prior to project completion so that we all know where we stand.

Thanks in advance – let me know if you have any issues or require additional information.”

[27] From 6 December onwards was outside the 10 business-day timeframe for the serving of a payment schedule on the claimant by the respondent.

[28] In his affidavit Mr Derbyshire says, among other things, about the email that:

“Further, after the email from Pauline Anderson to Mr Carroll dated 3 November 2010 …, the applicant agreed to send ‘all future invoices on the 28th of each month’. This also suggested to me that what had been sent to me by email dated 22 November 2010 was simply a working document that I was expected to review, not a formal payment claim and that the respondent was to receive a formal payment claim at the end of November 2010.

I also expected that a complete payment claim would have been sent to Pauline Anderson or Jocelyn Ackfield (and perhaps even Keith Gush). I have never before received a payment claim under the Act from the applicant addressed to my email address.

I was surprised to read in Mr Carter’s second affidavit that Mr Carter decided not to inform the respondent that no further information in the form of a CD would be sent because the respondent had not been given any additional supporting material for the variation since the CD received by the respondent on 2 September 2010 and no response had been received to the BCA letter. As at that date, the respondent had rejected the variations on the grounds that the applicant had not provided sufficient details and supporting material to establish that the variations were legitimate in the appropriate quantum. That position had not changed as at 22 November 2010, the date of receipt of Payment Claim 13.

I also interpreted Mr Carter’s email of 22 November 2010 to mean that the payment claim was incomplete in the sense that the supporting documentation (which did not arrive) would supplement the payment claim and that myself, Mr Carter and most likely Mr Conwell, would attend an onsite “walk though” to discuss each of the variations so that the respondent could address the validity of each claim in the appropriate amount, if any, payable.

On 8 December 2010 I sent an email to Messrs Carroll and Richards of the applicant noting that the respondent had not ‘received the promised CD containing supporting documentation to (the) variation claims’.

On 8 December 2010 I sent an email to Ian Conwell of BCA Consultants requesting Ian’s attendance at a meeting between the applicant, the respondent and BCA Consultants in order to resolve the applicant’s mechanical variation claims. The email also notes that I had emailed Mr Carter that day reminding him that the CD had still not been received.

Ian Conwell responded by email on 9 December 2010 that BCA Consultants would not instigate a meeting unless and until the applicant responded in detail to the BCA assessment provided ‘some time ago’. (A reference to the BCA letter.)

On 9 December 2010 Mr Carter sent me an email stating:

‘We will send you this response today. In my opinion the best way to sort this out is by a round table meeting where marked up drawings can be viewed and explained. It is evident that BCA do not comprehend the magnitude of the work put in based on their response. We have full costs from our suppliers and subcontractors to illustrate the difference in costs.’

Mr Carter’s suggestion of a round table meeting confirmed my understanding of the email of 22 November 2010 attaching a purported Payment Claim 13 (i.e. that nothing needed to be done, or could be done, until the CD had arrived and the walk through had taken place).”

[29] In Millers Annotated Trade Practices Act reference is made to the decision in Equity Access Pty Ltd v Westpac Banking Corp and a summary of some of the principles to be applied in relation to s 52 are summarized:

1. There will be no contravention unless error or misconception results from the conduct of the corporation and not from other circumstances for which the corporation is not responsible;

2. Conduct will be likely to mislead or deceive if there is a “real or not remote chance or possibility” of misleading or deception regardless of whether it is more than 50 per cent … The question of whether conduct is misleading or deceptive or likely to mislead or deceive is an objective question which the court must determine for itself. Hence, evidence that persons in the relevant class have been misled will, although admissible, not be determinative. In some cases, however, such evidence will be very persuasive.

3. For conduct to be misleading or deceptive the conduct must convey in all the circumstances of the case a misrepresentation;

…

6. Section 52 is not confined to conduct which is intended to mislead or deceive … and a corporation which acts honestly and reasonably may nonetheless engage in conduct that is likely to mislead or deceive.

[30] For conduct to be misleading or deceptive it must induce or be capable of inducing error. As was decided in Dimagogue Pty Ltd v Ramensky :

“The question is whether in light of all the relevant circumstances constituted by acts, omissions, statement or silence, there has been conduct which is or is likely to be misleading or deceptive.”

[31] Turning to the matters raised by the respondent, I do not consider the fact that the recipient of the claim and covering email was Mr Derbyshire and not some other officer of the claimant company to be particularly persuasive either standing alone or together with the other matters relied on. Mr Derbyshire is not only a director of the claimant company but also its commercial manager. It is also clear that Mr Carter had had dealings with Mr Derbyshire in respect of various matters under the contract.I do however accept that the forwarding of the claim to Mr Derbyshire was not the normal practice and needs to be viewed in context with the other matters discussed below.

[32] The claim was in the claimant’s usual format and stated to be a payment claim under the Act. Also, contrary to Mr Derbyshire’s view that the claim was not complete or some form of working draft, the covering email refers to an attached summary of the works completed and states that the claimant believed the attached documents were a precise evaluation of the works completed as at 27 October 2010.Further, the suggestion of an onsite meeting is not necessarily inconsistent with the position that the claimant considered Claim 13 to be a proper payment claim under the Act. Mr Williams’ observation that the claimant is only now seeking retrospectively to explain away the oversight of serving a payment schedule within the statutory time frame is not without some justification.

[33] However, there are some troubling aspects in respect of the conduct of the claimant. First, sending the claim to Mr Derbyshire (not a particularly persuasive point). Second, the claim was sent some six days prior to the agreed time for the sending of all future invoices being the 28th day of each month. (However it is noted that some claims were variously sent between the 22nd of a month through to the 30th). Third, the reference to the variation amounts being forwarded “for you to review …” needs to be considered in the context of there being ongoing negotiations concerning variation claims including, as far as the respondent was concerned, obvious deficiencies in the material provided by the applicant in support of the claims. Fourth, the assertion that the claimant would put the revised variations and supporting documentation in the post on a CD, which was not done. Finally, the offer of an onsite meeting, including at dates after the time for the serving of a payment schedule to “walk through” and “evaluate” the claim including controversial variation claims. This proposal strikes me as being somewhat at odds with the position of the claim being one intended to have the force and effect of a claim under the Act.

[34] While I do not consider the respondent’s position to be a particularly strong one when all of the above matters are taken into account it could not be said, in my view, with a sufficient degree of certainty that the respondent has no real prospect of successfully defending all or part of the claim and there is no need for a trial of the claim or part thereof. As Muir J (as he then was) observed in State Of Queensland v Nixon , an application for summary judgement might fail even though the applicant may have good prospects of ultimately succeeding at trial. The s 52 defence is at least an arguable one. In this regard I, with respect, consider the observations of Muir JA in Neumann to be pertinent, even though the subject course of dealings were over a shorter period of time:

“The matter, in my view, was one which was not suitable for summary determination. It necessitated, amongst other things, the forming of an impression of the reasonable expectations of [the respondent] in the light of its contractual dealings with [the applicant], something which would be undertaken only imperfectly without the judge seeing and assessing the witnesses and forming a true appreciation of the relevant protracted dealings between the parties.”

[35] Given my reasons concerning s 52 of the TPA I do not consider it necessary to consider the defence of estoppel. The arguable defence under the TPA is sufficient to defeat the application. I should also not here that no argument was advanced which would justify ordering payment of the alternative claim of $152, 886.99 in the event the application for judgement for $494, 327.35 failed.

[36] Accordingly I am not prepared to grant the relief sought and order as follows:

1. The further hearing of the application is adjourned to a date to be fixed.

2. I will hear from the parties as to the future conduct of the proceeding and as to costs. In regard to the former matter the parties might consider applying to a commercial list judge to list this matter.