[IN CHAMBERS.]

CAYRON AND ANOTHER v. RUSSELL AND OTHERS.

Practice-Interrogatories—Answering Affidavit-Reswearing-Order-Form-Ob. jection-"Rules of Supreme Court 1884"-Order XXXI., r. 10.

An answer to an interrogatory was qualified by a condition.

was, by order of a Judge in Chambers, struck out.

Held, that the answer as altered need not be resworn.

The condition

Held also, that the deponent could not contend that the answer as altered was not his answer.

After an order is approved by both parties and signed by the Judge objections to its form will not be entertained.

APPLICATION in Chambers.

On the 1st April 1898 an application for further and better answers to interrogatories had been made to Hood, J. It was objected that one of the answers (No. 3) was qualified by a condition, and the defendants' counsel at the hearing stated that he was willing to strike out the condition. Hood, J., made an order. The plaintiffs' solicitor prepared the draft of the order and submitted it to the defendants' solicitor, who made certain alterations in it. The draft with the alterations upon it was submitted to Hood, J., who, after reading the papers, wrote across the draft that he approved of the draft as altered by the defendants' solicitor. The order was accordingly submitted to the Judge, who signed it. The defendants did not, after striking out the condition objected to, reswear their answer. A dispute subsequently arose as to whether the defendants had complied with the order. Application was now made to Hood, J., by the plaintiffs for an alteration in the form of the order, because it did not comply with the order as pronounced, and for an expression of opinion as to whether under that order the defendants should not reswear their answer to interrogatory No 3. The matter was now mentioned to Hood, J., without comment.

Higgins for the plaintiffs.

Hayes for the defendants.

HOOD, J. (after referring to the facts). As to the first ground

1898

April 19.

Hood, J.

1898

CAYRON

v.

RUSSELL.

Hood, J.

of dispute, I think it is now too late to interfere with the form of the order. It has been drawn up, approved, and signed.

The next dispute is as to whether the defendants have complied with the order. Clearly they have complied with the letter of it, but the point of dispute is whether the defendants should not reswear their answer to interrogatory No. 3, the objection taken to that answer being that it was qualified by a condition. On the hearing before me Mr. Hayes said he was willing to strike out that condition and thus leave the answer unqualified. It is now contended that the defendants should reswear that unqualified answer, as it is said that they might object hereafter that, the answer having been altered, it is no longer their answer. I think that where an affidavit has already been sworn in answer to an interrogatory and a part of the answer is ordered to be struck out by consent the party swearing it can never afterwards say that this was not his answer. I think therefore that the defendants have complied with this order not only literally but in spirit.

I think the order correct in form, and that the defendants have complied with it.

Solicitor for plaintiffs: J. Woolf.

Solicitors for defendants: Willan & Colles.

R. H. C.

1898

Feb. 16, 17, 18.

Madden, C.J.

SHAW v. MELBOURNE AND METROPOLITAN BOARD OF WORKS. Contract-Construction-Condition-Final certificate-Arbitration—Judicial proceeding-Award-Melbourne and Metropolitan Board of Works Act 1890 (No. 1197), s. 79.

In a contract for the performance of certain works it was provided that after certain progress payments had been made to the contractor, no money should be considered to be due or owing to the contractor, nor should the contractor make any claim for or on account of any work executed or maintained by him unless a certificate that the works have been finally and satisfactorily completed and that the balance was due to the contractor had been given by the superintending officer and countersigned by the Engineer-in-Chief.

Under the specification of the works to be done were provisions that certain contingencies were to be provided for by the contractor at his own expense. The superintending officer gave, and the Engineer-in-Chief countersigned, a certificate purporting to be a final certificate, but in the certificate were contained deductions in respect of the matters mentioned in the specification.

In an action by the contractor to recover the amount deducted:

Held (reversing the judgment of MADDEN, C.J.), that the certificate was merely a certificate in respect of the sum therein certified to be due, and was not a final certificate entitling the contractor to recover the balance of moneys alleged to be due to him under the contract.

Per MADDEN, C.J. Sec. 79 of the Melbourne and Metropolitan Board of Works Act 1890 was not intended to extend the common law liability of the Board of Works.

ACTION.

Adam Gibson Shaw entered into a contract with the Melbourne and Metropolitan Board of Works for the construction of a sewer, according to specification, and for the performance of certain works and the supply of certain material and labour in connection with the construction of the sewer upon certain defined rates. In the specification it was provided:—

"2. The contractor shall at his own expense shore up, protect and make good, as may be necessary, all buildings, walls, fencing, or other property injured or liable to be injured during the progress of the work, and the contractor will be held responsible for all damage which may happen to neighbouring property from neglect of this precaution, or from any other cause connected with the prosecution of the work."

"9. Care must be taken when maintaining the trenches and work dry that the foundations of the sewers or adjoining buildings are not interfered with. If any damage arises from this cause the necessary repairs must be effected at the sole cost of the contractor."

Among the conditions of the contract were the following clauses:

-

"43. If the contractor shall, in the judgment of the Engineer-in-Chief, commit any breach of or shall fail to comply with any of the conditions on the part of the said contractor to be observed or performed, it shall be lawful for the Board either to pursue the remedy, if any, provided herein for such breach, or it may take the whole or any portion of the works out of his hands and enter into another contract or other contracts for their completion or carry them out by day labour at the contractor's expense, or it shall be lawful for the Engineer-inChief to estimate and assess the damage and loss that may have arisen or occurred, or be likely to arise or occur thereby, and the Board may deduct the same from any money that may be owing, or may thereafter become due or owing, to the contractor under this contract, or any security in which the same may be invested; and the contractor shall also be liable, either by way of set-off or otherwise, to pay such sum as assessed as if he had covenanted to pay the same."

"57. Payments, subject to all deductions and reservations herein provided for, will be made at every thirty days or as nearly as may be, as the works proceed, on the certificate of the superintending officer, at the rate of ninety per cent, on the value, in the judgment of the superintending officer, of the work actually done, and fifty per cent. on the value of such materials as may have been approved by him and the balance, subject, however, to the provisions

1898

SHAW

V.

MELBOURNE

AND

METROPOLITAN
BOARD OF
WORKS.

Madden, C.J.

1898

SHAW

v.

MELBOURNE

AND

METROPOLITAN
BOARD OF
WORKS.
Madden, C.J.

hereinbefore contained respecting maintenance, together with the amount
deposited as cash security, in thirty days, or as nearly as may be, after the
superintending officer shall have certified under his hand that the works have
been finally and satisfactorily completed, and that such balance, together with
the deposit security, is due to the contractor.
But all such certificates
given by the superintending officer whether for progress or final payment, must be
countersigned by the Engineer-in-Chief before having any force or validity; and
should the Engineer-in-Chief be of opinion that the contractor neglects or refuses
to execute any order or direction of the Engineer-in-Chief or superintending
officer, of whatever nature, in respect to the works of this contract, or to their
sufficient rate or progress, or to any other matter or obligation of this contract,
he, the Engineer-in Chief, may at any time refuse to countersign any such
certificate or other vouchers until such orders and directions are complied with to
his satisfaction by the contractor; and the contractor shall have no claim for
any loss, damage, or injury on this account.

"Provided always that no sum or sums of money shall be considered to be
due or owing to the contractor, nor shall the contractor make any claim for or on
account of any work executed or maintained by him, whether work mentioned in
the specification or any extras, additions, enlargements, deviations, or alter-
ations thereto or therein, unless such certificate as aforesaid shall have been
given by the superintending officer as aforesaid and countersigned by the
Engineer-in-Chief as aforesaid; nor shall any sum or sums of money so certified
be considered to be payable to the contractor until the expiration of fourteen
days after such certificate or voucher for such payment shall have been counter-
signed by the Engineer-in-Chief; nor shall any omission to pay the amount of
such certificate at the time the same shall be payable be held or deemed to be a
breach of or to vitiate or avoid the contract.
No claim whatsoever by

the contractor will be considered by the Engineer-in-Chief or referred to his arbitration which is not rendered to the Board before the expiration of thirty days after the completion of the contract as certified by the Engineer-in-Chief.

"58. . . . If in the opinion of the Engineer-in-Chief further inquiry is necessary or desirable before any certificate be paid, the Board shall have power to suspend the payment of all or any part of the amount mentioned in any such certificate for a period not exceeding one month from the date at which, in the ordinary course, the money would have been paid.

.

"

or

"59. In the event of any doubt, dispute or difference arising or happening touching or concerning the meaning of this contract, or of the specification or conditions of contract or concerning any certificate, order or award which may have been made by the Engineer-in-Chief respecting any other matter or thing not herein before left to the decision or determination of the Engineer-in-Chief, or to be governed by his certificate, every such breach, alleged breach, doubt, dispute, or difference shall, from time to time, be referred to and be settled and decided by the award of the Engineerin-Chief; and to the said Engineer-in-Chief shall also be referred the settlement of this contract and determination of the sum or sums or balance of money to be paid to or to be received from the contractor by the said Board."

"61. All the awards, directions, decisions, determinations, admeasurements, and valuations of the said Engineer-in Chief under any part of this contract (which said directions, decisions, determinations, admeasurements, and valuations respectively may be made from time to time) shall be final and binding upon the Board and the contractor respectively from and after the time when the same shall be certified to be final by the Engineer-in-Chief by writing under his hand;

.

and the Board and contractor do hereby agree respectively to perform, abide by,
and submit to the same, and that same shall not be set aside, or be attempted
to be set aside or objected to, on account of any technical or legal defects therein,
or in the specification of these conditions
and it shall not be com-
petent for the contractor or the Board to except in law or in equity to any
hearing or determination before or of the said Engineer-in-Chief on the ground
of any want of jurisdiction, or excess of authority, or irregularity of proceeding,
or otherwise howsoever; but any and all matters made the subject of any such
hearing or determination, or decision, and whether of retrospective or prospective
operation or effect, shall be deemed both at law and in equity to have been
properly submitted to the said Engineer in-Chief and to be taken to have been
properly adjudicated upon.

"62. Neither the contractor nor the Board shall have any power to revoke, annul, or interfere with the authority of the Engineer-in-Chief; and every award, certificate, and order which may be made by the said Engineer-in-Chief, and which shall by endorsement thereon be declared by the said Engineer-in-Chief to be his final certificate, order, or award, shall be final, binding, and conclusive on the parties to this contract, notwithstanding any attempted revocation by either of them or otherwise."

Under this contract the contractor proceeded with the work and was paid in progress payments 66,555l. 98. 7d. Having, as he thought, completed the work, he wrote asking for a certificate for final payment, whereupon a document (exhibit G 1) was prepared, of which the following are the material parts:

1898

SHAW

v.

MELBOURNE

AND

METROPOLITAN
BOARD OF
WORKS.

Madden, C.J.

I certify that the works and materials are satisfactory and that the quantities and measurements are correct.

Pass 2,7661. 148. 5d.

(Signed) W. THWAITES,

Engineer-in-Chief.

(Signed) CALDER E. OLIVER,
Superintending Engineer