DISTRICT COURT OF QUEENSLAND

CITATION:	Niclin No 1 Pty Ltd v Lambert 66 Pty Ltd [2022] QDC 45	
PARTIES:	NICLIN NO. 1 PTY LTD 
Plaintiff/Respondent	
	v	
	LAMBERT 66 PTY LTD
Defendant/Applicant	
FILE NO/S:	BD 451/2021	
DIVISION:	Civil	
DELIVERED ON:	11 March 2022	
DELIVERED AT:	Brisbane 	
HEARING DATE:	3 March 2022	
JUDGE:	Barlow QC DCJ	
ORDERS:	1.	The parties, by 18 March 2022, email to my associate either:
(a)	an agreed form of draft orders consistent with these reasons; or
(b)	if they cannot agree, each party’s proposed form of draft orders and written submissions (of no more than 5 pages) about the alternative proposed orders, including as to the costs of the application.
2.	The application be adjourned to a date to be fixed.
	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – OTHERWISE ABUSE OF PROCESS - the plaintiff pleaded issues that were allegedly raised and resolved by agreement and consent order in earlier Supreme Court proceedings – whether these aspects or all of the plaintiff’s statement of claim should be struck out, or the action should be dismissed, as an abuse of process

ESTOPPEL – ESTOPPEL BY JUDGMENT – ANSHUN ESTOPPEL – GENERALLY - the plaintiff pleaded issues that were allegedly raised and resolved by agreement and consent order in earlier Supreme Court proceedings - whether Anshun estoppel applies to any part of the claim

Burbank Australia Pty Ltd v Luzinat [2000] VSC 128
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, considered
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507, applied
UBS AG v Tyne (2018) 265 CLR 77, applied

COUNSEL:	D C Kissane for the plaintiff
B E Codd for the defendant	
		
SOLICITORS:	Results Legal for the plaintiff
Mills Oakley for the defendant	
Contents
Introduction
The contract
The issues raised in this proceeding
The Supreme Court proceeding
The alleged abuse of process and estoppels
Principles
Abuse of process
Anshun estoppel
The settlement agreement
Consideration
The effect of the settlement agreement
Res judicata and estoppels
Conclusions

Introduction
[1]	The plaintiff is a builder that constructed an apartment building for the defendant, which was the developer and “principal”, under a written contract.  The plaintiff claims that it is owed $145,300, either as a debt due under the contract, as damages for breach of the contract or for misleading or deceptive conduct.
[2]	The amount claimed represents an amount withheld by the defendant on account of liquidated damages for delayed completion of the building and a claim by the plaintiff for a variation which the defendant has rejected.  The plaintiff contends that the amount is due under a Final Payment Claim that it made at the conclusion of the Defects Correction Period provided for in the contract.  The defendant contends, in essence, that it is entitled to the liquidated damages, but it also contends that the plaintiff’s submission of a Final Payment Claim was well outside the time in which it was allowed to make such a claim and, not having made a claim within that time, under the contract the plaintiff released the defendant from any more claims or liability under the contract.
[3]	The defendant now seeks an order dismissing the claim, on the basis that it is an abuse of process because it raises issues that were raised in earlier litigation which the parties compromised, or dismissing or permanently staying the claim on the basis of res judicata or issue estoppel.  Alternatively it seeks to have most of the statement of claim struck out on the basis that the plaintiff has not properly pleaded its causes of action.  
[4]	I have received comprehensive and very helpful written submissions on both aspects of the defendant’s application but, at the end of addresses on the first part of the application (for dismissal or a stay), I adjourned the balance of the application pending my decision on the first part.  These are my reasons for concluding that the proceeding should not be dismissed or stayed, but that certain parts of the plaintiff’s statement of claim should be struck out as an abuse of process.  The plaintiff should have leave to replead its statement of claim.
The contract
[5]	The contract was for a fixed price (subject to variations).  Relevantly, it provided that, after the Date of Substantial Completion, there would be a 12 month Defects Correction Period (subject to extension under the defects clause).  During that period, the defendant may give the plaintiff a direction to rectify a defect, identifying the defect and the required date for completion of its rectification and stating whether there is a separate Defects Correction Period for that defect.  Any such separate period may be for a maximum of 12 months from the date the rectification is completed.
[6]	Separately, the contract provided that if, at any time until the issue of the Final Certificate, the Principal’s Representative discovers any work which does not comply with the contract, the representative may issue a direction requiring the plaintiff to rectify the work.  That clause did not provide for an additional Defects Correction Period.
[7]	The contract also provided that, within 15 business days after the later of the expiry of the Defects Correction Period and the plaintiff completing all its obligations under the contract, the plaintiff must provide to the Principal’s Representative a Final Payment Claim endorsed as such that must state its calculation of the final balance payable by one party to the other under the contract.  Within 10 business days of receiving the Final Payment Claim, the Principal’s Representative must (or if no Final Payment Claim is received that person may) issue a Final Certificate stating the final balance and explaining any differences from the Final Payment Claim.  All claims not made by the plaintiff in accordance with the Final Payment Claim clause are forever barred.  A Final Certificate is prima facie evidence, in any proceedings relating to the contract, that the Works had been completed in accordance with the contract to the reasonable satisfaction of the defendant except in the case of, relevantly, any defect which was not apparent at the end of the Defects Correction Period.
The issues raised in this proceeding
[8]	In this proceeding the plaintiff makes a number of claims under the contract.  The first part of the claim is that, during the construction, it claimed a number of extensions of time, the result of which was that the Date for Substantial Completion was extended from 29 January 2018 to 5 April 2018.  The Date of Substantial Completion was 18 April 2018.  The plaintiff contends that it was entitled to make those claims even though, for at least some of them, it had not strictly complied with the procedure required under the contract to claim an extension of time.  It alleges that this was in part because an alternative procedure had been adopted by the parties and the defendant is estopped from relying on the strict contractual procedure for extension of time claims.
[9]	The second part of the claim is that the defendant contended, in response to a progress claim that the plaintiff had made in March 2018, that the defendant was entitled to liquidated damages of $152,500 for late completion of the building (at the contractual rate of $2,500 a day).  The plaintiff contends that the defendant was not entitled to retain any more than $32,500 and sues for the difference of $120,000.
[10]	The third part of the claim is that, following the issue in March 2019 of a direction to rectify defects, the plaintiff completed the items listed in that direction, but it did not agree that 70 of the items were defects.  In respect of those items, it claimed a variation of the contract in the sum of $25,300, which the defendant has refused to pay.  
[11]	The fourth part of the claim is that the plaintiff completed the rectification of defects on 1 October 2019 (by reinstalling a rooftop fireplace), so that the separate Defects Correction Period for those defects expired on 1 October 2020, it made a Final Payment Claim for $213,179.73 on 2 October 2020 and the Principal’s Representative issued a Final Certificate on 14 October 2020 in which it deducted the sums of $152,500 and $25,300.
[12]	Thus, the plaintiff claims a declaration that the Date for Substantial Completion was 5 April 2018 and payment of a debt (after allowing for conceded liquidated damages of $32,500) of $145,300, or damages (apparently in that sum) for breach of contract or for misleading or deceptive conduct.
[13]	The defendant contends that:
(a)	the original Date for Substantial Completion was 25 January 2018, the adjusted date (taking into account valid claims for extensions of time) was 16 February 2018 and the Date of Substantial Completion was 18 April 2018;
(b)	the extension of time claims made by the plaintiff were not otherwise valid;
(c)	therefore it was entitled to liquidated damages of $152,500;
(d)	the plaintiff was not entitled to a variation for the rectification of the defects identified in the direction to rectify (which were all defects), or its claim for the variation was out of time under the contract; 
(e)	the Defects Correction Period lapsed on 18 April 2019 or 12 months after the defects were rectified, which was no later than 29 June 2019; 
(f)	the plaintiff’s Final Payment Claim was made more than 15 Business Days after the expiry of the Defects Correction Period and therefore it was invalid and the plaintiff had, under the contract, released the defendant from any claims not made in a valid Final Payment Claim;
(g)	in any event, the plaintiff is, or ought to be, prevented (whether by res judicata, issue estoppel or other estoppel, or because its claim is an abuse of process), by reason of the settlement and dismissal of an earlier proceeding in the Supreme Court of Queensland, from making any claims under the contract or any claims based on the expiry of a Defects Correction Period any later than 29 June 2019;
(h)	the Final Certificate was valid and, pursuant to that certificate, the plaintiff owes the defendant $83,247.70, for which the defendant counterclaims against the plaintiff.
[14]	There is therefore a number of issues raised in this proceeding, some discrete and some intertwined.  Of particular relevance is the date on which the defects identified in the direction to rectify defects were rectified, as that affects the date of expiry of the Defects Correction Period and consequently the date by which the plaintiff was entitled to make a Final Payment Claim.
The Supreme Court proceeding
[15]	The plaintiff filed an originating application in the Supreme Court of Queensland on 25 July 2019, naming the defendant as respondent.  Relevantly, it sought a declaration that, on the proper construction of the contract:
(a)	the definition of “security” and all references to that term did not include the sum of $202,500 held by the defendant as a form of retention monies;
(b)	alternatively, the Defects Correction Period had not been validly extended beyond 18 April 2019;
(c)	alternatively, the Defects Correction Period may not be extended for any defects not identified in a direction to rectify validly provided during the period from 18 April 2018 to 18 April 2019.
[16]	It also sought an order that the defendant pay the retention monies to it.
[17]	In an affidavit filed in support of the application, the plaintiff’s development manager, Caroline Cave, deposed that:
(a)	the Date of Substantial Completion under the contract was 18 April 2018;
(b)	on 27 March 2019, the defendant issued to the plaintiff a direction to rectify a list of defects, requiring that the rectification works be completed by 29 June 2019 and stating that a separate Defects Correction Period would apply to those defects for 12 months from the completion of the rectification works;
(c)	the defendant, on 4 April 2019 and 25 April 2019 respectively, issued two more directions to rectify that each attached an updated defects list;
(d)	in the period from 28 March 2019 to 21 June 2019, the plaintiff carried out rectification of the defects identified in the direction to rectify; 
(e)	on 21 June 2019, the plaintiff informed the Principal’s Representative that all the defects had been rectified; 
(f)	on 28 June 2019, the plaintiff’s lawyers wrote to the defendant’s lawyers, stating that the plaintiff had rectified various defects and there were no further defects outstanding that remained the plaintiff’s liability; and
(g)	the direction to rectify was, in any event, invalid as the defendant was only entitled to extend the Defects Correction Period for up to 12 months from a date within the initial Defects Correction Period.
[18]	On the first return date of the originating application, it was adjourned by consent to 4 September 2019.  Between those dates, the parties exchanged correspondence about the proceeding.  On 3 September 2019, the plaintiff’s solicitors wrote to the defendant’s solicitors, stating among other things that the plaintiff was entitled to return of the retention monies, it was not liable to rectify a rooftop fireplace because it was not a defect raised during the Defects Correction Period and there were no outstanding defects that were the plaintiff’s responsibility to rectify.  The plaintiff offered (in paragraph 4 of the letter) to settle the proceeding on the basis that the defendant would, within two business days of its acceptance of the offer, return to the plaintiff all but $10,000 of the retention monies and confirm that there were no outstanding defects the responsibility of the plaintiff to rectify apart from the rooftop fireplace, the plaintiff would then rectify the rooftop fireplace at its expense and the defendant would return the balance of the retention monies to the plaintiff within five business days of its receipt of the fireplace manufacturer’s approval of that rectification.
[19]	The following emails between the parties’ solicitors then ensued:
(a)	the defendant’s solicitor wrote, saying:
Can you clarify that your client is offering to discontinue the Originating Application in its entirety with each party to bear its own costs if our client accepts your client’s offer?
(b)	the plaintiff’s solicitor responded, saying;
I confirm that is correct.
(c)	the defendant’s solicitor then wrote:
Also, just to be clear, if our client were to agree to the offer, our client is only giving back the retention as agreed, it is not giving up any rights in respect of defects or in respect of the warranty that your client would give.  So if it turned out for example that the ceiling is still leaking or the basement is leaking, it will retain its right in respect of those matters and those rights are agreed to be preserved.  Could you confirm that your client accepts that is the position if our client were to agree to the offer.
(d)	the plaintiff’s solicitor responded:
I am instructed that is correct.
(e)	the defendant’s solicitor then wrote:
If our client were to agree to paragraph 4 of your letter, will your client agree for you to sign and return to us the attached consent orders this evening, originals to be handed up tomorrow?
(f)	the plaintiff’s solicitor responded:
Sure, anything else?
(g)	the defendant’s solicitor wrote:
On that basis, I confirm that our client agrees to paragraph 4 of your letter providing you sign and return the consent order document and email a copy to us tonight and the original is handed up by consent to the court tomorrow.
I also confirm as discussed that our client reserves its rights in respect of the defects.
[20]	The consent orders referred to were in the same terms as the orders made by consent by Jackson J the next day.  They provided that the proceeding be dismissed and each party bear its own costs.
The alleged abuse of process and estoppels
[21]	The defendant contends that, in the Supreme Court proceeding, the plaintiff made allegations of fact and contentions about the proper construction of the contract that are contrary to its contentions in this proceeding.  It is an abuse of process to make allegations of fact in one proceeding that is determined in the light of those allegations and later to make inconsistent allegations of fact in another proceeding between the same parties and about the same facts.  
[22]	The defendant also contends that the settlement of the Supreme Court proceeding included the compromise, by the settlement agreement, of the issues that the plaintiff now seeks to raise again in this proceeding.  Those issues were determined, as between the parties, by the settlement agreement and the consequent consent order made in that proceeding, so the plaintiff is estopped (by an issue estoppel) from raising them again in this separate proceeding.
[23]	Even if some of the issues raised in this proceeding differ from those raised in the Supreme Court proceeding, the defendant contends that they arise out of the same contract and involve a determination of the parties’ liabilities under that contract.  They are matters that could and should properly have been raised and determined in the Supreme Court proceeding.  The plaintiff is therefore estopped (on the Anshun principle) from raising them now in a separate proceeding.
[24]	Finally, the defendant contends that the orders made in the Supreme Court proceeding gave rise to a res judicata, by reason of which all the issues the subject of that proceeding were determined by that Court and the plaintiff cannot now raise those issues again in this proceeding.
Principles
[25]	For the reasons I set out below under the heading “Consideration”, it is unnecessary for me to consider the principles relating to issue estoppel and res judicata.  It remains to consider the defendant’s contentions of abuse of process and Anshun estoppel, as well as the effect of the settlement agreement.
Abuse of process
[26]	In Tomlinson v Ramsay Food Processing Pty Ltd, the plurality said:
making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised in a determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel.
[27]	In UBS AG v Tyne, the plurality said:
The courts must be astute to protect litigants and the system of justice itself against abuse of process.  …
Nor does the undue vexation which a stay of proceedings is concerned to prevent arise only when proceedings in respect of the same issue have been concluded by a judgment on the merits.  Serial proceedings discontinued prior to judgment would be an obvious example of an abuse of process.  The pursuit of substantially the same claim by serial proceedings conducted by different entities under common control is no less obviously an abuse of process.
It may be accepted that … the discontinuance of proceedings does not operate as a release of the claims made by the discontinuing party.  But that does not mean that discontinuance is irrelevant when the discontinuing party seeks by new proceedings to pursue a discontinued claim.  Nor does the possibility that a party might have sought the protection of conditions upon discontinuance, but did not, mean that the disruption and extra costs incurred by that party when confronted by new proceedings is not relevant to whether an abuse of process is being perpetrated.  An abuse of process is no less an abuse because the party adversely affected might have, by greater diligence in its own interests, prevented the abuse.  
[28]	Therefore, it will be an abuse of the process of this court if, in this proceeding, the plaintiff is seeking to raise issues that were raised and resolved (albeit by compromise and a consent order) in the Supreme Court.
Anshun estoppel
[29]	In Port of Melbourne Authority v Anshun Pty Ltd, the High Court held that a party to litigation is estopped from raising, in later litigation, issues or facts which clearly could have been raised in the original litigation and which are so closely connected to the subject-matter of that litigation that it was unreasonable not to raise them in that litigation.  Relevant to that question is whether the judgment sought in the later proceeding, if granted, would conflict with the judgment in the earlier proceeding, even though they may arise from different causes of action. It is enough, in determining whether they conflict, that they may appear to declare inconsistent rights in respect of the same transaction. 
[30]	Similarly, in Burbank Australia Pty Ltd v Luzinat, Beach J said:
Where a party to a proceeding institutes a second proceeding in a different form in relation to the same subject matter as the first proceeding, prima facie the second proceeding is vexatious and will be stayed.
[31]	These principles have been applied in many subsequent cases.
The settlement agreement
[32]	The defendant submits that the settlement agreement encompassed and resolved all of the issues raised in the Supreme Court proceeding.  The plaintiff, on the other hand, submits that the agreement was narrow in compass, settling only the question of the retention moneys, in settlement of which the plaintiff agreed also to rectify the rooftop fireplace. 
[33]	The resolution of the questions whether the agreement was in settlement of all issues in the Supreme Court proceeding and whether it precludes the plaintiff from raising any of the issues in this proceeding depends in part on general principles of compromise and, of course, in part on the facts of this particular case.
[34]	In similar vein to the principles concerning sequential proceedings constituting an abuse of process, in Foskett on Compromise the author states:
An unimpeached compromise represents the end of the dispute or disputes from which it arose.  Any issues of fact or law that may have formed the subject matter of the original dispute are buried beneath the surface of the compromise.  The court will not permit them to be raised afresh in the context of a new action.  If the parties have agreed that their original dispute may be resurrected in certain circumstances then, of course, the position may be different.  ...
This principle applies whether or not litigation was commenced in relation to the dispute and, if it was, whether or not the compromise has been embodied in a consent order or judgment of the court.
[35]	I respectfully adopt that passage as a correct proposition.
Consideration
The effect of the settlement agreement
[36]	The plaintiff submitted that the agreement to settle the Supreme Court proceeding did not compromise the parties’ rights and obligations regarding defects, leaving open to the parties the opportunity to litigate later any dispute concerning defects.  It was “not intended to be in full and final satisfaction of all matters the subject of that proceeding.”
[37]	The plaintiff, in support of its contention that the settlement was limited to the dispute over the retention moneys, points in particular to the defendant’s reservation of its rights in respect of defects and under the plaintiff’s warranty.  It submitted that that reservation of rights means that not all issues or potential disputes under the contract were resolved, particularly not any disputes concerning defects.  Therefore it is not unfair to the defendant for the plaintiff to make the claims it is pursuing in this proceeding.  
[38]	I disagree that that reservation of certain of the defendant’s rights means that no part of the dispute concerning or related to defects was resolved by the agreement.  Under the contract, at any time up to the issue of the Final Certificate the defendant was entitled, if it discovered a defect, to serve a direction to rectify: thus extending the period within which such a direction could be given beyond the Date of Substantial Completion and beyond the period relevant to the issues in the Supreme Court proceeding.  The plaintiff also gave the defendant warranties to the effect that it would use reasonable skill and judgment in the design of the works.  The Supreme Court proceeding concerned the construction and enforcement of particular rights and obligations under the contract, but did not affect more general rights and obligations.  But among the particular rights and obligations the subject of the proceeding were those concerning the then existing direction to rectify, the consequent expiry of the directions Correction Period and the parties’ rights as a result.
[39]	It is clear to me that the settlement agreement resulted in the resolution of all the issues that had been raised in that proceeding, notwithstanding that they were raised in the alternative to each other.  That proposition was made clear in the defendant’s solicitor’s email in which he asked if the plaintiff was offering to discontinue the originating application in its entirety, which the plaintiff’s solicitor promptly confirmed was the case.  That could only mean that every issue of fact or law raised in that application (as explained in the plaintiff’s supporting affidavit) was resolved by the dismissal of the proceeding.  The plaintiff is bound by the contract that led to that order, the effect of which is that the plaintiff is prevented from raising again any of the issues raised in that proceeding. 
[40]	That being so, I consider that the plaintiff is contractually bound not to raise those issues again in a separate proceeding.  Nor can it make any contentions of fact or law in this proceeding that are inconsistent with the contentions that it made in that proceeding, as that proceeding was settled having regard to those contentions and it would be to the defendant’s obvious disadvantage if the plaintiff were permitted to do so.  The plaintiff is prevented by its contract, and is also estopped by its conduct in resolving those issues, from making any such inconsistent contentions.  
[41]	Additionally, to raise those issues in this proceeding is an abuse of the process of this court, as the plaintiff is seeking to raise in this court issues that were raised and resolved by agreement in the earlier proceeding.
Res judicata and estoppels
[42]	Given my conclusion about those issues, it is not necessary that I consider whether the Supreme Court’s order results in a res judicata or issue estoppel.  However, I do note that even a consent order can give rise to res judicata on the causes of action brought in a proceeding or to an issue estoppel in some cases.  I do not need to determine whether either is the case here.
[43]	Notably, however, the settlement agreement did not purport to settle all issues that may arise concerning the contract or the parties’ actions relating to it.  Some of the plaintiff’s contentions in this proceeding were not the subject of the earlier proceeding and agreement.  In particular, the validity of the claims for extensions of time and the consequent amount of liquidated damages, the Final Payment Claim and the validity or correctness of the Final Certificate were not raised in the Supreme Court proceeding.  It remains necessary to consider, in respect of those issues, whether the plaintiff is estopped, under the Anshun principles, from raising those issues.
[44]	The Supreme Court proceeding and the settlement agreement concerned the defendant’s entitlement to retain what it claimed to be security and the amount then said to be owed by the defendant to the plaintiff, as well as issues concerning the validity and effect of the direction to rectify defects.  The Final Payment Claim, of course, was made well after that proceeding was settled.  Whether it was validly made is likely to depend on when the Defects Correction Period ended, which itself depends on when rectification of the defects in the direction to rectify was completed.  But the plaintiff’s entitlement to make the Final Payment Claim was not an issue that the plaintiff could have (and therefore should have) raised in that proceeding.  There is no estoppel preventing the plaintiff from raising it in this proceeding.
[45]	Whether the Final Payment Claim could be made may depend on when the last defect was rectified by the plaintiff.  In this respect, the settlement agreement included an express provision for rectification of the rooftop fireplace.  That work was not a defect listed in the direction to rectify, but separate work (which was the plaintiff’s position in the Supreme Court proceeding).  The work was clearly done pursuant to the settlement agreement and not as rectification of a defect under the process provided for in the contract.  It is not open to the plaintiff now to contend that it was a defect that it rectified and to which a separate Defects Correction Period applied. In any event, under the contract a separate Defects Correction Period only applies where the defendant says so in a direction to rectify defects. There is no pleading or evidence that the defendant made such a statement in respect of the fireplace.
[46]	The plaintiff is effectively bound by its assertion in the Supreme Court proceeding that the Defects Correction Period ended no later than 29 June 2019.  Whether it can still make a claim for a further payment may depend on whether that fact affects its right to make its current claim (or another) under the contract or otherwise.  But, if the plaintiff wishes to continue to make a claim of this sort, it will necessitate the plaintiff amending the basis on which it claims that it was entitled to make the Final Payment Claim or otherwise to claim money that it contends is due to it from the defendant, whether as a debt or as damages.
[47]	As for the issue of the extensions of time, that really affects the question whether the defendant was entitled to the amount of liquidated damages that it deducted from its final payment to the plaintiff.  That was not an issue in the Supreme Court proceeding because, although the extension of time claims had been made by the plaintiff, the Principal’s Representative had not then issued a Final Certificate by which liquidated damages were deducted, based on the rejection of the extensions of time.  Whether the claims were validly made and whether the defendant made the representations alleged (concerning acceptance of claims allegedly made after the time allowed under the terms of the contract) were not issues in that proceeding.  They appear to have been effectively raised only as a consequence of the Final Certificate. 
[48]	No Anshun estoppel arises in respect of these issues.  Nor is it an abuse of process for the plaintiff to raise them in this proceeding.  There is no reason why the plaintiff cannot now pursue its claim for payment of the withheld amount.
Conclusions
[49]	The plaintiff cannot now raise any disputes concerning the validity of the defendant’s direction to rectify, nor the date by which the plaintiff completed the rectification works and the consequent date of expiry of any Defects Correction Period concerning those works.  Its allegations and claims based on assertions to the contrary should be struck out as an abuse of process.  
[50]	However, the plaintiff can continue its claims arising from the disputes about the extensions of time, the consequent amount of liquidated damages and the alleged variation.  It may also be able to raise a claim for payment under its Final Payment Claim if it can legitimately construct a claim that is not inconsistent with the effective expiration of the Defects Correction Period no later than 29 June 2019.
[51]	The effect of these conclusions on the defendant’s application to dismiss the proceeding is that the entire proceeding will not be dismissed.  However, some of the plaintiff’s claims as presently pleaded must be struck out and others, if they are to proceed in any form, must be reconstituted so as not to be inconsistent with the claims made in, and the resolution of, the Supreme Court proceeding.
[52]	The appropriate course is to permit the parties to formulate draft orders that are consistent with these reasons.  Hopefully they can agree on the appropriate orders but, if they cannot, I will hear further from them.  If it becomes necessary, I will also consider the question of costs on a later occasion.
[53]	The defendant’s application to strike out certain paragraphs of the amended statement of claim should await the formulation of orders on the first part of the application.  It may need to be abandoned or reconstituted, depending on the next iteration of the statement of claim.