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[2016] ZAKZDHC 3
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Transnet Soc Limited v Group Five Construction (Pty) Ltd and Others (7848/2015) [2016] ZAKZDHC 3 (9 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
no: 7848/2015
DATE:
09 FEBRUARY 2016
In
the matter between:
TRANSNET
SOC
LIMITED
.............................................................................................
APPLICANT
And
GROUP
FIVE CONSTRUCTION (PTY)
LTD
......................................................
1
st
RESPONDENT
TROTECH
ENGINEERING
AFRICA
(PTY)
LTD
................................................................................................
2
nd
RESPONDENT
THE
ASSOCIATION OF ARBITRATORS
(SOUTHERN
AFRICA)
...........................................................................................
3
rd
RESPONDENT
JORDAAN
C
.............................................................................................................
4
th
RESPONDENT
POORTER
S
D
..........................................................................................................
5
th
RESPONDENT
GORDFREY
J
H
.......................................................................................................
6
th
RESPONDENT
MORGAN
R
L
..........................................................................................................
7
th
RESPONDENT
Coram:
JEFFREY AJ
Heard
:
2
nd
September 2015
Delivered
:
9
th
February 2016
Summary:
Engineering and Construction Law
– NEC3 Building and Construction Contract –
interpretation – provisions concerning appointment of an
adjudicator
– dispute resolution process including an
arbitration clause – Jurisdiction of the High Court.
JUDGMENT
Jeffrey
AJ
[1]
This is a dispute about the interpretation
of the provisions a NEC3 Building and Construction Contract,
concluded between the applicant
(as the employer) and a joint venture
between the first and second respondents (as the contractor),
concerning the appointment
of an adjudicator.
[2]
The contract in question relates broadly to
the design, supply, erection and testing of accumulators by the first
and second respondents
at a specific terminal of a pipeline that
forms part of the so-called New Multi Products Pipeline Project.
[3]
The applicant contends that, on a proper
interpretation of the contract, the fourth respondent has been
appointed as the adjudicator
for
all
disputes arising under or in connection with the contract. And
it seeks a declaratory order to this effect from this Court.
[4]
The first and second respondents contend
otherwise. In a three-pronged attack they contend –
first, it is impermissible
for the applicant to approach the Court
for the declaratory order sought because the contract provides for an
arbitration process
in respect of all disputes between the parties;
and second, on a proper interpretation of the contract, the parties
contemplated
the appointment of multiple adjudicators or
ad
hoc
adjudicators for each dispute that
may arise during the course of the project. Finally, they
contend that the applicant is
estopped from contending that the
contract provides for the appointment of only one adjudicator because
of its post-contractual
conduct in actively participating in the
appointment of different adjudicators. This conduct, so the
first and second respondents
contend, is consistent with an
interpretation that multiple
ad hoc
adjudicators were contemplated by the parties.
[5]
The following description of NEC3 contracts
is readily and reliably ascertainable and, therefore, I am able to
take judicial notice
of it. NEC contracts are largely standard
form contracts published commercially in the United Kingdom for use
in that country
and internationally. NEC is an acronym for New
Engineering Contract. The first NEC contract was published in
1993 and,
thereafter, it has appeared in further editions.
Essentially, from the standard form NEC contracts and various
ancillary
documents as well as filling in their own wording, parties
are able to compile a contract that they believe will suit the
project
that they are concerned with.
[6]
In this instance the parties chose to use
the NEC3 Engineering and Construction Contract (June 2005 edition
with June 2006 amendments)
as the basis for their agreement in which
they incorporated various ancillary NEC documents and, in addition,
they completed the
various blanks in the chosen documents with the
obvious intention of arriving at a comprehensive agreement.
[7]
This contract, in the result, contains a
bewildering array of provisions derived from the various NEC options,
several of which
were incorporated into the contract by the parties
and which follow neither a numerical sequence nor a uniform
description.
Also, the words used in the blanks completed by
the parties are often are couched in a cryptic shorthand style.
But, in construing
this document, I am mindful of what Lord Wright
said in
Hillas & Co Ltd v Arcos Ltd
[1932] UKHL 2
;
[1932] All ER Rep 494
(HL) 499H that:
'Business
men often record the most important agreements in crude and summary
fashion; modes of expression sufficient and clear
to them in the
course of their business may appear to those unfamiliar with the
business far from complete or precise. It is accordingly
the duty of
the Court to construe such documents fairly and broadly, without
being too astute or subtle in finding defects.'
This
too has been the approach of our Courts: see, for instance,
Murray
& Roberts Construction Ltd v Finat Properties (Pty) Ltd
1991 (1) SA 508
(A) 514B-F;
Heathfield v
Maqelepo
2004 (2) SA 636
(SCA) para 14;
and
Novartis SA (Pty) Ltd v Maphil
Trading (Pty) Ltd
2016 (1) SA 518
para
31. I have tried to adopt the same approach and to make some
allowance for any lack of such precision as would have
been employed
by ‘a lawyer or linguistic precisian' – to borrow the
description of such persons by Trollip AJA (as
he then was) in
Trever
Investments (Pty) Ltd v Friedhelm Investments (Pty) Ltd
1982 (1) SA 7
(A) 15C–D.
[8]
In what appears to be the seminal Form of
the contract and which is styled ‘Form of Offer and
Acceptance’, the parties
inter
alia
(a) described the project
concerned as ‘a contract for the Design, Supply, Erection and
Testing of Accumulators at Terminal
1 – Coastal on the New
Multi Products Pipeline (NMPP) Project’; and (b) they agreed
that the terms of their agreement
would be set out in further Forms
styled ‘Part C1 – Agreement and Contract Data’ that
included the Form of offer
and acceptance; ‘Part C2
–Pricing Data’; ‘Part C3 – Scope of Work:
Employer’s Works Information’;
and ‘drawings and
documents (or parts thereof) which may be incorporated by reference
into the above listed Parts’.
[9]
There are optional standard form provisions
that the parties also chose to include in their contract. Of
relevance to this
dispute, they chose option W1, a Form relating to
dispute resolution procedure including the appointment of an
adjudicator and
an arbitration process in the event of a party being
dissatisfied with a decision of the adjudicator. They also
chose option
Z, a Form relating to additional conditions of contract
and incorporating
inter alia
certain additions, deletions or omissions but none of these
provisions, however, are pertinent to the issue that I have to
determine.
Both options W1 and Z comprised part of the
aforementioned ‘Part C1 – Agreement and Contract Data’
Form.
[10]
Turning to the relevant clauses in the
contract, these are the following:
(a)
Clause 12.2 of the Form C.2 Contract Data provides that ‘the
law of the contract is the law of the Republic of South Africa
subject to the jurisdiction of the Courts of South Africa.’
(b)
Clause 11 of the Form C.2 Contract Data sets out the data relating to
the dispute resolution option W1. Clause 11.W1.1
provides that:
‘
The
Adjudicator is – To be appointed under the NEC3 Adjudicator’s
Contract (June 2005) if and when a dispute arises.’
(c)
Clause 11.W1.2(3) provides that:
‘
The
Adjudicator nominating body is: The Association of Arbitrators
(Southern Africa)’
(d)
Clause 11.W1.4(2) provides that:
‘
The
tribunal is – arbitration.’
(e)
Clause 11.W1.4(5) provides that:
‘
The
arbitration procedure is – The current ‘Rules for the
Conduct of Arbitrators’ published by the Association
of
Arbitrators (Southern Africa)
The
place where the arbitration is to be held is – Johannesburg
The
person or organisation who will choose an arbitrator if the Parties
cannot agree a choice or if the arbitration procedure does
not state
who selects an arbitrator is – the Chairman of the Association
of Arbitrators (Southern Africa).’
(f)
Clause 12.1 of the Core Clauses provides
that:
‘
In
this contract, except where the context shows otherwise, words in the
singular also mean in the plural and the other way round
and words in
the masculine also mean in the feminine and neuter.’
(g)
The relevant dispute resolution provisions
in Option W1 itself are:
‘
W.1.1
A dispute arising under or in
connection with this contract is referred to and decided
by the
Adjudicator.
W1.2
(1) The Parties appoint the Adjudicator under the NEC
Adjudicator’s
Contract current at the starting date
[1]
.
(2)
The Adjudicator acts impartially and decides the dispute as an
independent adjudicator and not as an arbitrator.
(3)
If the Adjudicator is not identified in the Contract Data
[2]
or if the Adjudicator resigns or is unable to act, the Parties choose
a new adjudicator jointly. If the Parties have not
chosen an
adjudicator, either party may ask the Adjudicator nominating body
[3]
to choose one. The Adjudicator nominating body chooses an
adjudicator within four days of the request. The chosen
adjudicator becomes the Adjudicator.
(4)
…
(5)
…
W1.3
(1) Disputes are notified and referred to the Adjudicator
in accordance with the Adjudication Table
[4]
.
(2)
… [Provisions relating to the extension of times for notifying
and referring a dispute to the Adjudicator
are set out] … If a
disputed matter is not notified and referred within the times set out
in this contract, neither Party
may subsequently refer it to the
Adjudicator or the tribunal
[5]
.
(3)
– (9) …
(10)
The Adjudicator’s decision is binding on the Parties
unless and until revised by the tribunal and is enforceable
as a
matter of contractual obligation between the Parties and not as an
arbitral award. The Adjudicator’s decision
is final and
binding if neither Party has notified the other within the times
required by this contract that he is dissatisfied
with the decision
of the Adjudicator and intends to refer the matter to the tribunal.
(11)
…
W1.4
(1) A party does not refer any dispute under or in
connection
with this contract to the tribunal unless it has first
been referred to the Adjudicator in accordance with this contract.
(2)
If, after the Adjudicator notifies his decision a Party is
dissatisfied, he may notify the other Party that he intends
to refer
it to the tribunal. A Party may not refer a dispute to the
tribunal unless this notification is given within four
weeks of
notification of the Adjudicator’s decision.
(3)
If the Adjudicator does not notify his decision within the time
provided by this contract, a Party may notify the
other party that he
intends to refer the dispute to the tribunal. A Party may not
refer a dispute to the tribunal unless
this notification is given
within four weeks of the date by which the Adjudicator should have
notified his decision.
(4)
The tribunal settles the dispute referred to it. The tribunal has the
powers to reconsider any decision of the Adjudicator
and review and
revise any action or inaction of the Project Manager or the
Supervisor related to the dispute. A Part is not
limited in the
tribunal proceedings to the information, evidence or arguments put to
the Adjudicator.
(5)
If the tribunal is arbitration
[6]
,
the arbitration procedure, the place where the arbitration is to be
held and the method of choosing the arbitrator are those set
out in
the Contract Data.
[7]
(6)
A Party does not call the Adjudicator as a witness in tribunal
proceedings.’
JURISDICTION
[11]
The first issue to be determined is that
raised
in limine
by the first and second respondents – namely, that this Court
should decline to determine and refuse this application because
the
applicant has not complied with the agreed arbitration process or,
perhaps more accurately expressed, the dispute resolution
process.
[12]
There
is a clear distinction drawn in the contract, however, between the
adjudication process and the arbitration process, both
of which form
part of the dispute resolution process that was agreed to by the
parties, the provisions of which are set out in
Option W1
[8]
.
[13]
Mr
Gajoo
,
who appeared for the applicant, argued that there is a dearth of
authority in South African law on whether or not an adjudicator
may
determine his own jurisdiction and referred me to certain English
authority
[9]
on this point in
support of the proposition that an adjudicator may consider his own
jurisdiction but such a finding would not
be binding on the employer
in the absence of an agreement that it would be. Mr
Gajoo
urged me to find that this Court does have jurisdiction to determine
this application and grant the relief sought.
[14]
Mr
King
,
who appeared for the first and second respondents, argued that the
point
in limine
had been misconstrued by the applicant and the question was not
whether or not the adjudicator could determine own jurisdiction
but
was whether or not the applicant should be permitted to bypass the
arbitration process to which it had agreed to in the contract.
He submitted, on the authority of
Zhongji
Development Construction Engineering Co Ltd v Kamoto Copper Co SARL
2015 (1) SA 345
(SCA) that the applicant was not permitted to do so
and that this Court should refuse the application.
[15]
The
‘arbitration process’ referred to by Mr
King
in his argument, perhaps more accurately expressed, forms the part of
the dispute resolution process that I have referred to.
[10]
Mr
King
indeed argued that it does not matter that a dispute between the
parties must first be submitted to an adjudicator and thereafter,
if
one of the parties are dissatisfied with the adjudicator’s
award, the dispute is referred to an arbitrator. It is
clear
from the contract between the parties that the dispute resolution
process is a two tiered process – the dispute is
first referred
to an adjudicator and thereafter it may be referred to arbitration.
[16]
Where the parties have expressly agreed to
an arbitration process our Courts are generally are not entitled to
determine issues
that fall within the province of an arbitrator in
terms of that process unless an order has been granted in terms of
s
3(2)(b)
of the
Arbitration Act, No. 42 of 1965
: see
Zhongji
para 54.
[17]
This principle, although confined in
Zhongji
to
an arbitration process, in my view applies equally to the dispute
resolution process in this matter that encompasses an arbitration
process in its second tier.
[18]
The Courts have consistently respected the
provisions of arbitration agreements and will give effect thereto:
see
Zhongji
paras
55 – 57 and the authorities cited. I am not entitled to
depart from the aforementioned principle.
[19]
In the premises, this application must
fail.
INTERPRETATION
OF THE CONTRACT RELATING TO THE APPOINTMENT OF AN ADJUDICATOR
[20]
But if I am wrong in finding in favour of
the first and second respondents on their point
in
limine
, I am of the view that, on a
proper interpretation of the contract between the parties, the
contract contemplates and the parties
intended that several
ad
hoc
adjudicators may be appointed to
resolve disputes that may arise.
[21]
The modern approach to the interpretation
of written documents, including statutory provisions, are to be found
in several decisions
of the Supreme Court of Appeal. In
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA) para 18 Wallis JA succinctly summarised the law
on this subject that, as he later said in
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) para 11,
reflected the
developments as at 2012 in contractual interpretation found in
Masstores (Pty) Ltd v Murray &
Roberts Construction (Pty) Ltd and Another
[2008] ZASCA 94
;
2008
(6) SA 654
(SCA) para 7;
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
2009
(4) SA 399
(SCA) para 39; and
Ekurhuleni
Metropolitan Municipality v Germiston Municipal Retirement Fund
2010
(2) SA 498
(SCA) paras 12 – 14. Wallis JA’s
summary read:
‘
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given
to the language used in the light
of the
ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed
and
the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be
weighed in
the light of all these factors. The process is objective, not
subjective. A sensible meaning is to be preferred
to one that
leads to insensible or unbusinesslike results or undermines the
apparent purpose of the document. Judges must be alert
to, and guard
against, the temptation to substitute what they regard as reasonable,
sensible or businesslike for the words actually
used. To do so in
regard to a statute or statutory instrument is to cross the
divide between interpretation and legislation;
in a contractual
context it is to make a contract for the parties other than the one
they in fact made. The 'inevitable point of
departure is the language
of the provision itself', read in context and having regard to the
purpose of the provision and the background
to the preparation and
production of the document.’
And
at paras 25 and 26 Wallis JA added:
‘
Which
of the interpretational factors I have mentioned will predominate
in any given situation varies. Sometimes the language
of the
provision, when read in its particular context, seems clear and
admits of little if any ambiguity. Courts say in such cases
that they
adhere to the ordinary grammatical meaning of the words used.
However, that too is a misnomer. It is a product
of a time
when language was viewed differently and regarded as likely to have a
fixed and definite meaning; a view that the experience
of lawyers
down the years, as well as the study of linguistics, has shown to be
mistaken. Most words can bear several different
meanings or shades of
meaning and to try to ascertain their meaning in the abstract,
divorced from the broad context of their use,
is an unhelpful
exercise. The expression can mean no more than that, when the
provision is read in context, that is the appropriate
meaning to give
to the language used. At the other extreme, where the context makes
it plain that adhering to the meaning suggested
by apparently plain
language would lead to glaring absurdity, the court will ascribe
a meaning to the language that avoids
the absurdity. This is
said to involve a departure from the plain meaning of the words used.
More accurately it is either a restriction or
extension of
the language used by the adoption of a narrow or broad meaning of the
words, the selection of a less immediately
apparent meaning or
sometimes the correction of an apparent error in the language in
order to avoid the identified absurdity.
In between these two
extremes, in most cases the court is faced with two or more possible
meanings that are to a greater or lesser
degree available on the
language used. Here it is usually said that the language is
ambiguous, although the only ambiguity
lies in selecting the proper
meaning (on which views may legitimately differ). In resolving the
problem, the apparent purpose of
the provision and the context in
which it occurs will be important guides to the correct
interpretation. An interpretation will
not be given that leads to
impractical, unbusinesslike or oppressive consequences or that will
stultify the broader operation of
the legislation or contract under
consideration.’
In
Dexgroup
(Pty) Ltd v Trustco Group International (Pty) Ltd and Others
2013
(6) SA 520
(SCA) para 16 Wallis JA said:
‘…
the
developments in the interpretation of written documents reflected in
KPMG
Chartered
Accountants (SA) v Securefin Ltd and Another
and
Natal
Joint Municipal Pension Fund v Endumeni Municipality
… make it clear that in interpreting any document the starting
point is inevitably the language of the document but it falls
to be
construed in the light of its context, the apparent purpose to which
it is directed and the material known to those
responsible for
its production. Context, the purpose of the provision under
consideration and the background to the preparation
and production of
the document in question are not secondary matters introduced to
resolve linguistic uncertainty but are fundamental
to the process of
interpretation from the outset. The approach of the arbitrator cannot
be faulted in this regard.’
In
Bothma-Batho Transport (Edms) Bpk v S
Bothma & Seun Transport (Edms) Bpk
2014
(2) SA 494
(SCA) para [12] Wallis JA said in relation to the summary
of the earlier approach to the interpretation of contracts by
Joubert
JA in
Coopers & Lybrand
and Others v Bryant
[1995] ZASCA 64
;
1995 (3) SA 761
(A)
768A – E:
'Whilst
the starting point remains the words of the document, which are the
only relevant medium through which the parties have
expressed their
contractual intentions, the process of interpretation does not stop
at a perceived literal meaning of those words,
but considers them in
the light of all relevant and admissible context, including the
circumstances in which the document came
into being. The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away.
Interpretation is
no longer a process that occurs in stages but is essentially one
unitary exercise
Interpretation is no
longer a process that occurs in stages but is 'essentially one
unitary exercise'. Accordingly it
is no longer helpful to refer
to the earlier approach.’
In
Commissioner, South African Revenue
Service v Bosch and Another
2015 (2) SA
174
(SCA) para 9 Wallis JA said in relation to the interpretation of
a provision in the Income Tax Act, No. 58 of 1962:
‘
The
primary issue in dispute was whether the two taxpayers exercised a
right to acquire the shares, within the meaning of that expression
in
s 8A(1)
(a)
,
when they exercised the options, or whether they only did so when the
time for payment and delivery arrived. That involves the proper
construction of the section in accordance with ordinary principles of
statutory construction. The words of the section provide
the starting
point and are considered in the light of their context, the apparent
purpose of the provision and any relevant background
material.
There may be rare cases where words used in a statute or contract are
only capable of bearing a single meaning,
but outside of that
situation it is pointless to speak of a statutory provision or a
clause in a contract as having a plain
meaning. One meaning may
strike the reader as syntactically and grammatically more plausible
than another, but, as soon as more
than one possible meaning is
available, the determination of the provision's proper meaning will
depend as much on context, purpose and
background as on
dictionary definitions or what Schreiner JA referred to as “excessive
peering at the language to be interpreted
without sufficient
attention to the [historical] contextual scene”.’
[22]
Applying
these principles, the starting point is the contract itself. The
central provisions are first, Clause 11.W1.1 that provides
that ‘The
Adjudicator is – To be appointed under the NEC3 Adjudicator’s
Contract (June 2005)
if
and when a dispute arises
.’
[11]
Second,
Clause W1.1 and W1.2(1) of Option W.1 that respectively
provide: ‘A dispute arising under or in
connection with this
contract is referred to and decided by the Adjudicator’ and
‘The Parties appoint the Adjudicator
under the NEC
Adjudicator’s Contract current at the starting date.’
Although these clauses refer to the adjudicator
in the singular,
clause 12.1 of the Core Clauses expressly contemplates the plural as
well. It provides: ‘In this contract,
except where the
context shows otherwise, words in the singular also mean in the
plural and the other way round …’.
[23]
The words ‘If and when a dispute
arises’ may be ambiguous. The words could mean that an
adjudicator is appointed
initially ‘if and when a dispute
arises’ and then retains such appointment, as the applicant
contends, throughout the
period of the project. They could
equally mean that an
ad hoc
adjudicator is appointed ‘if and when a dispute arises’
for that dispute only and another
ad hoc
adjudicator may be appointed ‘if and when’ each
subsequent dispute arises.
[24]
But
construed in the context of the contract as a whole that provides in
great detail for large and extensive works consisting of
the design,
supply, erection and testing of accumulators by the first and second
respondents at a specific terminal of a pipeline
forming part of the
so-called New Multi Products Pipeline Project, objectively ‘…the
parties, as rational businessmen,
are likely to have intended…’
[12]
that multiple disputes could arise during the course of the project
and that the determination of these disputes would require
the
expertise of
ad
hoc
adjudicators from different disciplines or experience or, depending
upon the number of disputes at any given time, more than one
ad
hoc
adjudicator. This intention would be sensible,
practical,
expeditious and businesslike and would not stultify the broader
operation of the contract because it is axiomatic that
the purpose of
appointing an adjudicator to determine a dispute with the tight
time-lines set out in the contract is to ensure
as far as possible
that the dispute is resolved as expeditiously as possible so that the
project is not stultified by delays caused
by the existence of the
dispute. It is likely that the expeditious progress of a large
project like this one would be jeopardised
if
ad
hoc
adjudicators were not appointed.
Furthermore
- and although this consideration does
not
in itself determine the issue - the subsequent conduct of the
parties
[13]
underscores the
parties’ intention that
ad
hoc
adjudicators could be appointed. Advocate Lane SC was appointed
to adjudicate the ‘tank dispute’ only and not
to
adjudicate every dispute that subsequently arose. The
applicant’s project manager also suggested that an alternative
adjudicator be chosen for the ‘radii dispute’. What
is more, the applicant suggested that the appointment of
Advocate
Lane SC had been ‘abandoned’ which is contrary to its
case that only one adjudicator was contemplated in the
contract.
[25]
In short, therefore, the interpretation
sought to be placed by the applicant on the provisions of the
contract regarding the appointment
of adjudicators cannot be
sustained.
ESTOPPLE
[26]
In view of the conclusions I have reached
above it is unnecessary for me to decide the third point on estopple
raised by the first
and second respondents. It is left open.
COSTS
[27]
In my view the complexity and nature of
this matter warranted the employment of senior counsel.
ORDER
The
application is dismissed with costs, such costs to include the costs
of senior counsel where employed.
JEFFREY
AJ
Appearances
For
applicant: Mr V Gajoo SC
Instructed
by: Cliffe Dekker Hofmeyer Inc
c/o
Livingston Leandy Inc
Ref.
Mr G Pentecost
For
1
st
and 2
nd
respondents: Mr J C King SC
Instructed
by:
Norton
Rose Fullbright South Africa Inc
Ref.
Mr G Rademeyer/GFT1
[1]
Defined
clause 31.2 of the form C1.2 Contract Data as 2 August 2010.
[2]
As
in this instance, see
clause
11.W1.1 above in para [10](c).
[3]
Defined
as
‘
The
Association of Arbitrators (Southern Africa)’ in clause
11.W1.4(5) see para [10](c) above.
[4]
Then
follows a table setting out the type of dispute, which party may
refer that dispute to the adjudicator and the strict time-lines
of
when that dispute may be referred to the Adjudicator. It is
clear that
all
disputes between the parties are contemplated in this Table.
[5]
Defined
as
‘
Arbitration’
in clause 11.W1.4(2), see para [10](d) above.
[6]
As
it is in this matter in terms of C
lause
11.W1.4(2), see para [10](d) above.
[7]
Clause
11.W1.4(5),
see para [10](e) above.
[8]
See
para [10](g) above.
[9]
Coulson
Coulson
on Construction Adjudication
(2ed) 203-7 at paras 7.09-7.16; and Fastrak Contractors Ltd v
Morrison Construction Ltd
[2000] EWHC Technology 177
;
[2000] BLR 168
para 32.
[10]
See
para [12] above.
[11]
Emphasis
added.
[12]
To
echo Lord Hoffmann’s words in
Fiona
Trust & Holding Corporation and Others v Privalov and
Others
[2007] UKHL 40
;
[2007]
4 All ER 951
(HL) para 13.
[13]
In
ascertaining
the parties' intentions in these circumstances it has been held that
regard may be had to subsequent conduct in determining
what the
parties really intended to achieve: see
Rane
Investments Trust v Commissioner, SA Revenue Service
2003
(6) SA 332
(SCA) para 27 and the authorities cited. Cf.
Kingswood Golf Estate (Pty)
Ltd v Witts-Hewinson
2013
JDR 2722 (SCA) paras 17-23.