Drill Engineering & Pastoral Company Pty Ltd v Seymour & another [2022] QDC 1361

Julie Whitehead  |  Elissa Morcombe  |  Eva Squire

Key takeout

A party must have adequate supporting evidence to establish a breach of an unwritten contract.  Where this relies on technical expert evidence, it must be given by an appropriately qualified expert in order to be admissible.  Merely having some familiarity with a field of specialised knowledge does not make a person an expert. 

Facts

In about mid-2017, the Plaintiff (Depco) entered into an agreement with the Defendants (Seymours) to drill a water bore on their property.  While no written contract existed between the parties, they agreed that Depco would drill to a depth of approximately 1,200m in the hope of tapping an artesian aquifer.  The Seymours agreed to pay Depco $265 per metre plus GST for that work.

Over several weeks, Depco drilled a bore to a length of 1,388m but did not tap an artesian aquifer.  Depco ceased drilling on 9 September 2017 and claimed payment of $335,896 pursuant to the agreement between the parties.  The invoice was not paid and Depco brought proceedings claiming payment under the agreement, or alternatively an equivalent sum as restitution.

The Seymours denied that Depco was entitled to any payment for the drilling work on three grounds: 

1. the contract between the parties was an entire contract requiring Depco to drill ‘as nearly as possible’ to 1,200m true vertical depth (TVD); the Seymours claimed that Depco’s bore hole diverted significantly from true vertical and thus did not drill to that depth; 
   
2. they did not direct Depco to cease drilling works; rather, Depco abandoned the works and thereby repudiated the contract; and
   
3. the contract was an entire contract and not performed, so no right to restitution could arise.

In response, Depco claimed:

1. that the contract was not an entire contract; 
   
2. it did not promise to drill to 1,200m TVD but rather to drill with reasonable care and skill for approximately 1,200m; and
   
3. Seymours directed it to cease the drilling works when the bore reached 1,388m and thereby agreed to the termination of the drilling works.

Decision

Depco was entitled to the sum it claimed under the contract.  The evidence demonstrated that the contract between the parties did not require them to drill 1,200m to become entitled to payment. Rather, Depco was required to ‘take reasonable care to keep the hole as vertical as possible within practical limits using appropriate equipment’.  The question then became whether Depco had failed in that regard.

Porter DCJ found that Depco’s evidence that it used reasonable care to keep the bore hole straight and plumb within practical limits was not contradicted by admissible evidence and not challenged in cross examination.  The evidence showed that the drill was fit for purpose and managed to drill 1,388m in length (if not true depth).  In particular, Porter DCJ was critical of the Seymours’ expert evidence, finding much of the opinion evidence given by their expert was inadmissible due to lack of appropriate qualification as a directional driller. In order for expert evidence to be admissible there must be:

•  an agreed or demonstrated field of ‘specialised knowledge’; and
  
• an identified aspect of that field in which the witness demonstrates that by reason of the specified training, study or experience, the witness has become an expert.

The party who tenders the expert evidence has the onus of demonstrating these requirements. The Seymour’s expert had no relevant university qualification or vocational training.  Nor was it demonstrated that he had experience in deploying specialist knowledge for the purpose of directional drilling. Being familiar with an area of specialist knowledge is very different to having the level of specialised knowledge that allows one to give admissible expert evidence.

Finally, Porter DCJ found that Depco had not abandoned the drilling, but that the Seymours had initiated the termination of the drilling efforts.