Ms.

Eliza Bergin
Principal Solicitor
Victorian Government Solicitors Office
Level 39
80 Collins Street
Melbourne
Vic 3000
Eliza.bergin@vgso.vic.gov.au

22 June 2011
Dear Ms. Bergin


RE: VCAT Review P623/2011 [Dimmeys Site]

Subject Site: 140-160 Swan Street, Richmond. 3121
We write further to the Director of Public Transport correspondence to the Tribunal, and
the Draft Permit Conditions to be placed upon the Planning Permit. Recently it has come
to our attention re the restrictions for development of the said land.

The Dimmeys land is held on two titles: Volume 09988 Folio 526 (Main title) & Volume
10382 Folio 379.

The largest parcel, the title plan TP841947E Instrument, shows it has land Depth
Limitation: Lot 1 is limited in so much as lies above the depth of 15.24 metres below the
surface. The other portion of the land, Volume 10382 Folio 379 is unlimited in depth, we
assume can be excavated to any depth. This section of the land is closest to the Burnley
Tunnel underneath.

Given that the Burnley Tunnel is estimated to be 65 metres below the surface, has
consideration been given to any analysis of the weight ratio of a massive new construction,
to depth of foundation so close to the Burnley Tunnel?

In 2005 the Remedial Works for the Burnley Tunnel, Melbourne cross-section through the
final lining of the tunnel Figure 2, Page 1. October 2005 shows Crown Arch Lining, Un-
reinforced concrete arch fc=50MPa. (See attached).

Whilst the Burnley Tunnel remedial works detail the amount of stressing capacity load of
about 10,000 tonne, we ask: has consideration been given to the dead weight of a ten
storey building, and associated 3 basement level car parks upon the Burnley Tunnel below
the proposed Dimmeys development tower?
1
Whilst we realise that VCAT P623/2011 is a Planning Permit Review, we feel that as the
matters raised are not in the Yarra Council Officers Report these matters we now raise.
They have not been addressed or contemplated in any way. We feel it is appropriate that
besides Permit Conditions being placed upon the site by the Director of Public Transport,
in case of rail derailment and tower structure impacts, there should be a load assessment
and any possible affects on the Burnley Tunnel now, prior to the issuance of any Planning
Permit by the Tribunal.

As the Burnley Tunnel lies partially under the railway easement, and a part of Dimmeys
land, we feel it is appropriate that consideration be given even a cursory assessment or
comment upon any possible effects that may occur with any disturbance of the said
development land, and the Burnley Tunnel underneath, by this proposed development and
its excavations for foundations or associated pile-driving etc.

In 2007, Transurban launched further legal action against the Transfield Obayashi Joint
Venture in 2007, after radar tests indicated the tunnel walls were thinner than that
specified in the contract, possibly resulting in the tunnel not lasting for the proposed
100-year design life. Sydney Morning Herald (smh.com.au). 23 January 2007.

Given that there has been design problems with the tunnel, and the tunnel walls are
thinner than that specified in the contract, we believe the tunnel was never designed to
withstand the construction phase or the weight of both live and dead load pressures of the
proposed development. We raise the point: would the Burnley Tunnel withstand the
additional associated loads upon a structure such as the Tunnel?

As you are the delegate to the Director of Public Transport, and the proposed development
abutts the existing railway easement, and the Burnley Tunnel is part below the easement,
we feel the appropriate course of action is to ensure that this proposal will not put Public
Safety in jeopardy, including Sovereign Risk should there be any change in the soil
conditions under and around the development site.

We raise this as similar recent developments in Sydney resulted in the collapse of the
building and structure. Will we have an unforeseen man-made geological event in
Melbourne?

Perhaps the Director of Public Transport may seek fit to include additional clauses to the
proposed permit conditions in light of the potential for damage to the integrity of the
Burnley Tunnel super structure through vibration or impact.

Yours sincerely




Allan Harris
Secretary
on behalf of Save Dimmeys
[The Association]
SaveDimmeys@gmail.com
Attach:
2
REMEDAL WORKS FOR THE BURNLEY TUNNEL, MELBOURNE





1

October 2005

REMEDIAL WORKS FOR THE
BURNLEY TUNNEL, MELBOURNE

Background

The Burnley Tunnel in Melbourne is about
3.5km long and passes at a depth of 60m
beneath the Yarra River (see Figure 1). n
about mid-1999, prior to the tunnel being
opened, problems developed with the invert
lining within parts of the tunnel. These
problems were widely canvassed in the
Media and aspects of the remedial works
were published in the Melbourne Age. This
article deals with technical facets which are
in the public domain. t does not deal with
matters which were subject to dispute
between various parties associated with the
tunnel.

Pells Sullivan Meynink Pty Ltd (PSM) was
retained by the Contractor, in early 2000, to
be responsible for the design of all remedial
works.



TunneI Geometry

Figure 2 shows a cross-section through the final
lining of the tunnel (References 1, 2 and 3). The
lining is fully tanked by means of a continuous
PVC membrane between the Primary Lining
(rockbolts, sets and shotcrete) and the un-
reinforced concrete Secondary Lining.




Figure 1 Summary of Geology along the Burnley Tunnel.


REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





2

October 2005


Figure 2 Cross-section through the designed permanent lining of Burnley Tunnel.

The tunnel invert comprised thick slabs with a
slightly arched underside. There is a
longitudinal joint near the centerline as shown
in Figure 2. The slabs are 12m long along the
tunnel, i.e. there are transverse joints at 12m
intervals along the invert.
Each 12m long invert slab was given a number.
The numbering is shown in Figure 3.
REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





3

October 2005


Figure 3 Longitudinal Section Showing nvert Slab Numbers

The hydrostatic pressures in the vicinity of the
Swan Street Shaft are 600 kPa (i.e. 60m head
of water).

FaiIure of Certain Invert SIabs

The tunnel was constructed from the two
portals, and with headings extending in both
directions from the Swan Street shaft. Free
drainage of the rock was allowed during
construction, and there was substantial
drawdown of the groundwater pressures at
tunnel level. Surface settlements associated
with depressurisation of the Coode sland Silt
(a normally consolidated clay) were controlled
by an extensive system of reinjection bores.

Closure of the lining and tanking membrane
was achieved on Melbourne Cup Day (1
st

November), 1998. mmediately prior to closure
the total inflow into the tunnel was about 40
lit/sec.

Over the following 10 months the groundwater
levels slowly recovered, and during this period
various grouting works were undertaken to seal
leaks through construction joints, because no
membrane tanking is perfect. Total inflows
were about 10 to 15 lit/sec. However, the thick
floor slabs deflected upwards between about
10mm and 45mm as the groundwater
pressures built up.

A significant length of the bitumen road
pavement was laid in August 1999 but by
October seepage inflows had increased to
about 25 lit/sec, parts of the bitumen pavement
had lifted, and the groundwater table recovery
had stalled at about 40m. There were serious
concerns as to achieving full groundwater
recovery, and about the performance of the
invert under the design loading of 600kPa. To
this end the groundwater pressures around
successive lengths of the tunnel were
increased, by injection, to the design pressure.
During this testing several lengths of the invert
failed by upward heaving of up to 200mm, and
fracturing of the thick, unreinforced concrete.

The original project consultants designed a
multi-anchor system for remediation of 21 No.
12m lengths of invert slab near the Swan Street


REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





4

October 2005

shaft (see Reference 6). However, concerns
remained in regard to the remaining 160 slabs
(a length of 1.92km).

t was at this stage that PSM was retained to
take responsibility for design of remedial works.
Taylor Thomson Whitting acted as specialist
sub-consultants in regard to aspects of the
concrete works, and Professor an Gilbert of
University of NSW advised in regard to facets
pertaining to concrete creep. Professor Peter
Ansourian of University of Sydney conducted
some independent analyses of PSM designs.
Dr Mike Coulthard provided specialist advice to
PSM in regard to UDEC analyses.

StructuraI Remediation of the Invert

With some modifications, the multi-anchor
design was adopted for slab 55 and for slabs
95 to 116 (see Figure 4).
Figure 4 shows that these remedial measures
comprised:

x Trimming 400mm of the existing
invert concrete,
x nstallation of sufficient anchors to
resist the uplift pressures (typically
96, nominal 100 tonne working
load anchors per 12m long by
12.7m wise invert slab),
x Casting of new reinforced concrete
capping slab, and
x Stressing of the anchors.


Figure 4 Multi-anchored slabs.

Over the remainder of the tunnel, except for
slabs 1 to 12 and 177 to 181, remedial work
comprise central twin anchors, at average
longitudinal spacing of about 1.2, as shown in
Figure 5.








REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





5

October 2005


Figure 5 Twin Anchor Design.

Photo 1 shows part of the central section of the
tunnel during multi-anchor installation and
Photo 2 shows a patch of completed 46mm
diameter VLS stressbar anchors within the
reinforced capping slab, prior to casting the
slab and stressing of the anchors.
Photo 3 shows a typical length of twin-anchor
remediated slabs.

n total there were about 2500 anchors in the
multi-anchored slabs and a further 2700
anchors in the twin-anchored slabs
1
.


Photo 1 Drilling and installation of anch ors. Photo 3







1
The anchors were installed by two sub-contractors to the Joint Venture, namely Austress-
Freyssinet and National/VSL. PSM were responsible for signoff of every anchor. Golder
Associates, who were project geotechnical consultants to the JV, assisted with field supervision
for anchor installation.

Photo 2

REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





6

October 2005

Monitoring of the Invert SIabs During
Stressing

As already mentioned, each 12m long central
slab was pre-stressed with about 96 anchors,
with a combined load of about 10,000 tone (i.e.
more than the weight of two Anzac Class
Frigates). The key issue was to ensure that the
slabs did not settle or twist more than a defined
amount during stressing as this could have
affected adjacent slabs and/or interaction with
the arch lining. The task was to achieve the
requisite monitoring accuracy (<2mm in level)
and to be able to determine the three
dimensional movement of each slab, all in real
time.

The system was designed by Mr Neil Street
and supplied and managed by Mr John Gertzel,
a Melbourne surveyor. t comprised
Geodimeter 6000 robotic theodolites mounted
on heavy brackets fixed to the concrete
sidewall of the tunnel. This system required the
use of active prisms which in effect identify
themselves to the theodolites. They also have
the advantage of a light which flashes when a
"hit is registered and the visual telltale was
helpful to supervisory staff casting an eye over
the whole process.

Each theodolite could handle about 30 prisms.
At the peak of stressing operations there were
about 90 prisms, requiring simultaneous
operation of three theodolites.


The prisms were mounted on posts which
ranged in height from about 1.2m to 2.0m.
There were four prisms for each half of an
invert slab (a half slab being defined by the
near-central longitudinal joint and the 12m-
spaced transverse joints). Photo 4 shows the
typical post arrangement. Survey distances
were typically less than 30m.

Readings from the theodolites were processed
and assessed in real time and the stressing
sequence of the anchors within a half-slab was
managed so that tilt and slab settlement was
within the prescribed limits. The system
consistently achieved accuracy of relative
levels of better than or equal to 1mm.

The structural remedial measures were
completed by August 2000 at which time
inflows were about 60 lit/sec and there was
substantial drawdown of the groundwater
system. The task was then to implement a
grouting programme to reduce inflows to a
target value of <10 lit/sec.

Grouting

An extensive grouting programme was
implemented to deal with the damage to the
tanking system that occurred due to failure of
some of the invert slabs and from installation of
about 5200 high capacity anchors through the
membrane.

The 60 lit/sec that was entering the tunnel at
completion of the structural works was mainly
coming through the invert area and from behind
the lower sidewalls. nflows were also entering
through transverse joints between arch pours.

To put it mildly it was a difficult grouting project
because we were almost working blind and
each and every grout hold drilled through the
membrane created yet another water path into
the tunnel. Fortunately there were excellent
mapping records of the geology encountered
during tunneling
2
, and in particular shear and
fracture zones that were the major paths of
water through the folded Silurian siltstones.
Photo 4


2
The logging had been done by the Joint Venture's geotechnical group under Bruce Hutchinson,
including geologists from Golder Associates.
REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





7

October 2005

t was decided that the only way the grouting
objective (of <10 lit/sec) could be met was to
provide multiple lines of defence. The strategy
therefore comprised:

1. Microfine and ultrafine cement grouting of
major, highly permeable, features in the
rock mass, these being assessed as being
prime sources for groundwater;
2. Chemical grouting of water paths at the
contact between the rock and the original
primary shotcrete and steel set support;
3. Chemical grouting of water paths at the
contact between the original primary
shotcrete and the geotextile / PVC
membrane;
4. Ordinary Portland cement grouting of any
voids beneath the invert (i.e. on the rock
side of the invert membrane) arising out of
uplift movements of the invert slabs; and
5. Chemical grouting to form circumferential
cut-off rings at intervals along the tunnel to
cut off flow along the tunnel between rock
and membrane.
A full description of the grouting works is
outside the scope of this short technical history.
The work too 5 months, commencing in mid-
July 2000. Throughout this period it was very
difficult to measure whether we were being
successful because water introduced into the
tunnel for drilling, and other construction
processes, made it impossible to measure the
natural inflows (see Figure 6).


Figure 6 nflows and Groundwater Pressures.
REMEDAL WORKS FOR THE BURNELY TUNNEL, MELBOURNE





8

October 2005

By mid-December 2000, almost exactly a year
after PSM commenced work on the project,
rock mass cement grouting of 5604 holes had
been completed, and 6482 holes had been
drilled and grouted with polyurethane and
acrylate grouts.
3
. By the 11
th
November 2000
all tunnel electrical and mechanical facilities
had been tested and the tunnel was ready for
traffic. Between 14 and 16 November, final
washdown occurred with discharge from the
tunnel peaking at 150 lit/sec. We held our
collective breaths, and a few days later the
inflow was measured at 7.6 lit/sec. Over the
following months the groundwater table
recovered to about 55m head and inflows were
about 9.4 lit/sec. By Christmas 2000 the
Melbourne public were happily using their new
tunnel.

AcknowIedgements

PSM acknowledge the extraordinary work from
construction personnel of the Transfield
Obyashi JV during the remedial works. Naming
individuals is always invidious, but when it was
cold, wet, dark and depressing the efforts and
dogged enthusiasm of Ross Herbert, Ray
Verratti, Matthew Gault and Gary Griffioen were
wonderful. PSM particularly acknowledges the
support of Claudio di Berardino who was
Project Director for the remedial works, and
thanks Malcolm Short and Ed Taylor for all the
information they provided in regard to design
and construction work that had occurred in the
years prior to PSM's involvement.
References

1. Nelson A, Porter S and Wilson C (1996).
The Melbourne City Link Tunnels; some
Preliminary Design and Construction
Concepts. 9
th
Australian Tunneling
Conference, Sydney, pp 31-45.
2. Short M, Weeks N, Woodall R and Porter S
(1999). Design of the Melbourne City Link
Tunnels. 10
th
Australian Tunneling
Conference, Melbourne, pp 3-14.
3. Taylor E and Munro G (1999). The Race to
Finish From Design to Completion 5km
of Three Lane Road Tunnel in Three Years.
10
th
Australian Tunneling Conference,
Melbourne, pp 15-20.
4. Hutchinson BJ and Lamb (1999).
Construction Management of
Hydrogeological Aspects of Melbourne's
City Link Project. 10
th
Australian Tunneling
Conference, Melbourne, pp 35-45.
5. Pells PJN and Street N (2003). A note on
Real Time Monitoring of Tunnel nvert
Slabs during Stressing. Geotechnical
nstrumentation and Construction Works
Compliance Testing, Australian
Geomechanics Society Mini-symposium,
Sydney.
6. Benson ND, Haberfield C and Paul D
(2005). Geotechnical Design and
Construction of nvert Anchors. Australian
Tunneling Conference, Brisbane.










3
The cement grouting was performed by National Contracting / VSL and the chemical grouting by
Eptec Pty Ltd.
MARKET DATA
MONEY
PORTFOLIOS & WATCHLISTS
QUOTES
BUSINESS NETWORK
Transurban action over tunnel walls
Royce Millar and Stephen Moynihan
January 23, 2007
TRANSURBAN has launched legal action against
the companies that designed and built Melbourne's Burnley tunnel and $2 billion City Link tollway.
Radar tests last year indicated that the tunnel's concrete walls were thinner in some places than
the 300 millimetres specified in contracts with builders, raising questions about whether the
tunnel would see out its proposed 100-year life.
Further tests involving actual samples will now be taken to decide whether or not Transurban will
act on a writ filed in the Supreme Court against the joint designers and builders of the tunnel,
Transfield Holdings and multinational construction group Obayashi.
"Transurban does not believe it will have to pick up the tab," said spokesman Mike Roberts. "But
whatever happens, there will be no costs passed on to motorists. There will be no higher tolls as
a result."
Asked why the problem had only just been detected, five years after the tunnel opened, Mr
Roberts said ground-penetrating radar had only recently become available for use in tunnels.
"The radar has picked up some potential questions but at this point our investigations are not
conclusive."
Mr Roberts said the writ was filed in the Supreme Court before a deadline for such claims in
December.
"The writ was filed to protect our rights," he said.
The writ raises questions about the final examination of the project by the independent reviewer
charged by the Kennett Government with overseeing the tunnel project, Dr Max Lay.
Yesterday Dr Lay could not recall testing the thickness of the walls and said that if such tests
were done, they would only have been done in sample areas. He said he was confident there
were no safety concerns.
Mr Roberts also stressed that despite issues about the thickness of the wall there was no
suggestion that safety was compromised.
"Both our own engineers and our external tunnel consultants say the tunnel is safe," he said.
"If there is an issue, and I say if, it is about long-term life."
Transurban would not identify the location of possible weak spots.
The 3.4 kilometre Burnley Tunnel, which links South Melbourne with Burnley in Richmond, has
been plagued by problems, including cracking and leaking since it opened in 2001.
In a 2001 out-of-court settlement over earlier problems, the Transfield Obayashi Joint Venture
agreed to pay Transurban $157 million in damages. Transfield Obayashi last night issued a brief
statement in which it said it believed the issues raised in the new writ "were settled some years
ago".
Under a concession deed the City Link tollway should have 66 years of operational life left when
Transurban hands it over to the State Government in 2034.
Acting Premier John Thwaites said he had been advised the tunnel was safe and there would be
no impact on motorists or a rise in the price of tolls.
When news happens: send photos, videos & tip-offs to 0424 SMS SMH (+61 424 767 764), or email us.
Did you know you could pay less than $1 a day for a subscription to the Herald? Subscribe today.
Copyright 2007. The Sydney Morning Herald.

[Home] [Databases] [WorldLII] [Search] [Feedback]
Supreme Court of Victoria
You are here: AustLII >> Databases >> Supreme Court of Victoria >> 2002 >> [2002] VSC 315
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [LawCite] [Context]
[No Context] [Help]
Hyder Consulting (Victoria) Pty Ltd v Transfield Pty Ltd
[2002] VSC 315 (16 August 2002)
Last Updated: 21 August 2002
IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST
No. 6017 of 2000
HYDER CONSULTING (VICTORIA) PTY LTD
(ACN 006 149 506) and ANOR
Plaintiffs
and
TRANSFIELD PTY LTD (ACN 000 854 688) and ANOR
Defendants
JUDGE: Byrne J
WHERE HELD: Melbourne
DATE OF HEARING: 2 August 2002
DATE OF JUDGMENT: 16 August 2002
CASE MAY BE CITED AS:
Hyder Consulting (Vic) Pty Ltd v Transfield Pty Ltd
MEDIUM NEUTRAL CITATION: [2002] VSC 315
---
PRACTICE and procedure - Mareva injunction - risk of dissipation of assets - payment of loan
debt.
---
APPEARANCES: Counsel Solicitors
For the Plaintiffs Mr R.A. Brett QC Holding Redlich
For the Plaintiffs Mr R.A. Brett QC Holding Redlich
For the Defendants Mr C. M Scerri QC Mallesons Stephen Jaques
HIS HONOUR:
1. This application is brought in one of the proceedings which constitute the litigation arising out
of the construction of tunnels to carry motor traffic under the Yarra River in Melbourne. The
principal contending parties in the litigation are, on the one hand, four companies, two persons
and the estate of a third deceased person which were collectively referred to as "the Hyder
parties", and, on the other, three companies which were referred to as "the TOJV parties".
Broadly speaking, the Hyder parties are parties who were or were said to have been involved
in the design of the tunnels; TOJV was the consortium which entered into an agreement with
the proprietor to design and construct the tunnels. In Proceeding No. 6543 of 1998, the
Hydrogeology proceeding, the TOJV parties are the plaintiffs and the Hyder parties are some
of the defendants. In that proceeding, I was told, TOJV seeks damages of some $200M for
alleged defects in the original design of the tunnels by the Hyder parties. In the Tunnel Design
proceeding, Proceeding No. 6017 of 2000, two of the Hyder parties, Hyder Construction
(Victoria) Pty Ltd and Egis Constructions Pty Ltd ("Egis"), sue two of the TOJV parties for
fees for their engineering services. These same Hyder parties are two of the defendants to the
counterclaim of those two TOJV parties seeking damages for defective design work. The joint
trial of the proceedings is fixed to commence on Monday 5 May 2003.
2. The present application is brought by the TOJV parties on 21 June 2001 pursuant to general
liberty to apply, seeking Mareva relief against Egis. As finally formulated the orders sought
were the following:
"1. That Egis, whether by its Directors, officers, employees or agents, disclose all
relevant details of all transactions between Egis and Tall Wind Pty Ltd. 2. That
Egis, whether by its Directors, officers, employees or agents, disclose details of
the sale of the Egis business to GHD as sought in Malleson's letter of 10 July
2002. 3. That Egis, whether by its Directors, officers, employees or agents, not
apply the proceeds of sale of any property or asset in the distribution of any
dividend or any other form of profit distribution, return any capital, make any
loan or guarantee or charge over the assets of the company in favour of a related
party or repay any related entity loan or charge (including any loan or charge to
Tall Wind Pty Ltd) (`Distribution') without providing at least 14 days notice of
any such proposed distribution to TOJV, unless otherwise agreed to or ordered
by the court. This order does not apply to any trade creditors of Egis paid in the
normal course of business."
3. While it is true that there are professional indemnity insurance interests involved, it was said
that there was uncertainty whether the insurers would answer the claims of the Hyder parties
upon them and that, in any event, the available cover would be insufficient to satisfy the
judgment if the TOJV parties were substantially successful. So much was not disputed before
me. I find that there is sufficient risk that, if Mareva relief is not granted, the judgment which
the TOJV parties hope to recover against Egis will be rendered partly ineffective.
4. The transactions which have provoked this application occurred in the early months of this
year. The facts, which were not in contest, appear from the affidavits of Jim Delkousis, the
solicitor for the TOJV parties, sworn on 21 June 2002 and 1 August 2002 respectively, that of
Alan John Stringfellow, the managing director of Egis, sworn 17 July 2002 and that of David
Beaumont Andrews, the solicitor for Egis, affirmed on 1 August 2002.
5. In 2001 a majority of the issued shares in Egis were held by its French parent company.
According to Mr Stringfellow, the French parent had provided working capital to Egis
totalling some $8.36M. By July 2001 Egis was therefore indebted to the parent in that sum
plus an amount in excess of $2.5M for unpaid interest and management fees. In November
2001, its capital position, as it appears in an informal consolidated summary balance sheet
produced by Mr Stringfellow, showed that it had current assets of $20.348M, including
approximately $3M cash and about $9.5M debtors. Against this, its current liabilities,
including the $11.295M owing to the French parent, totalled $25.101M. When non-current
assets and liabilities are brought into account, the net capital deficit at the end of November
2001 was $3.17M. In October 2001, upon an assessment by Ernst & Young, the picture was
less hopeful: the company was valued at negative $2.403M as a going concern and at
negative $12.294M on a liquidation basis.
6. Against this background, the French parent was minded to withdraw its financial support in
December 2001. Accordingly, the Australian management proposed to buy out the interests of
the French company on the following basis. First, the overseas shareholders were to sell their
shares to Drifting Dunes Pty Ltd as trustee for the Drifting Dunes Unit Trust. The Drifting
Dunes Unit Trust is a trust for interests associated with the Australian management of Egis.
The consideration for this transfer was not disclosed. Second, the French parent and Egis
agreed to restructure their loan account by writing off about $2.5M management fees and
capitalising interest so that the total debt was reduced to $8.905M. The time for repayment of
this debt was extended to 31 January 2002. Third, the French parent creditor assigned its
rights to repayment of the debt to Tall Wind Pty Ltd, a company also owned by interests
associated with the Australian managers. The consideration for this assignment was that the
French parent would receive 20 percent only of the repayments received by Tall Wind from
Egis. Again, no documents supporting or detailing these arrangements were produced.
7. From the perspective of the TOJV parties as prospective judgment creditors of Egis, the
consequence of this transaction is not significant. Egis remained subject to a very substantial
debt to a person or persons associated with its management. On its balance sheet its working
capital remained negative and its value as a going concern and upon liquidation was probably
unchanged. This would have the consequence that, in the event of a substantial judgment in
favour of the TOJV parties, the company would probably be wound up and those parties
would have to prove in the winding up ranking with other unsecured creditors.
8. The next transaction was that Egis agreed with Tall Wind to an extension of the repayment
date of the loan debts to 31 July 2002. Again, it does not appear when this was agreed or the
terms of the agreement.
9. And then, in May 2002, Egis entered into two agreements which give rise to the present
application. First, on 13 May 2002 Egis agreed to sell to the Gutteridge Haskins & Davey
Group ("GHD") certain of its assets and liabilities for an undisclosed consideration. The sale
was effective on 31 May 2002. The subject matter of this sale is described on the Egis website
as "all operational staff and assets". In his affidavit Mr Stringfellow is a great deal more
circumspect. The subject matter is described by him as "certain assets and the assumption of
certain liabilities of Egis in respect of employees and leases". There was also an agreement
whereby GHD offered employment to employees of Egis and its subsidiaries. Again, no
documents or details are provided.
10. About the same time, on 22 May 2002, Egis requested Tall Wind again to vary the repayment
date of the loans. This was agreed to so that the $6.6M loan plus $574,960 capitalised interest
became payable on 31 May 2002. For this indulgence Egis agreed to pay $29,426 as an early
repayment fee. It was further agreed that the repayment date of the loan of $1.74M be
extended to 31 December 2002. No documents or details of these agreements have been
provided.
11. The effect of these transactions for present purposes has been to improve the net balance sheet
position of Egis. On the summary balance sheet, its net current assets or working capital
increased from negative $3M to nearly $2M in credit. This has been achieved by reducing
current assets by about $5.5M and by reducing current liabilities by about $10.5M.
12. What is puzzling about this May transaction, however, is how it was achieved. On the slender
information available, it would seem that Egis then paid to Tall Wind about $7.2M. Most, if
not all, of this must have been provided by GHD under the sale agreement. This is puzzling
because the summary balance sheet does not show what assets of this value might have been
sold to produce such a sum other than Accrued Revenue/CCIP which fell by $4.7M between
December 2001 and May 2002. It is true that net trade debtors were also reduced in the same
period by about $3.3M but this may be partly explained by the increase of $1.976M in cash. It
should be observed that, in this period according to its website, Egis was not entering into
new contracts for consulting engineering services and had disposed of its operational staff and
assets.
13. Notwithstanding that these transactions may be puzzling, they will not support the Mareva
relief sought unless it be established to the appropriate standard that there is a risk that Egis
may put its assets beyond the reach of the TOJV parties in the event of their success. This
satisfaction is not to be founded upon any insufficiency or obscurity in the disclosures of Egis
although these may make the Court less likely to displace adverse inferences which are
otherwise open[1].
14. The present position, as the information provided to me shows it to be or warrants an
inference, is as follows. Egis has received a significant injection of capital from GHD. This
has been applied to discharge its liabilities to interests associated with its current management,
to reduce creditors other than trade and loan creditors and to create provision for insurance
and redundancies. I make no finding about the propriety or otherwise of these payments. The
effect, however, has been that these creditors were paid in full whereas other creditors will
have to rank in the event of a winding up. These other creditors will include the TOJV parties
if they are successful and if the insurance cover is insufficient. All of this, however, is in the
past. What lies ahead is the prospect of a repayment of a further $1.74M loan payable to Tall
Wind on 31 December 2002 or earlier.
15. Counsel for Egis submitted that his client should be permitted to deal with its assets as it saw
fit unless the threatened disposition was improper, and that it was perfectly proper for a
company to pay its debts. The word "improper" in this context boasts no less respectable
provenance than Spry on Equitable Remedies, whose 6
th
edition contains the following:
"Here it is important to bear in mind that the purpose of Mareva injunctions is to
prevent the improper removal and dissipation of assets, and not to affect
otherwise the activities of the defendant or to affect the priorities of creditors."[2]
16. Nevertheless, impropriety in the sense of a breach of some right or obligation is not a feature
of Mareva relief[3]. Nor is it part of the plaintiff's proofs to show that the apprehended
disposal was improper in the sense that Egis intended to frustrate a judgment which the TOJV
parties hoped to recover[4]. The question for the Court at this stage is simply whether there is
a risk that the assets of Egis will be dealt with so as to put them out of reach of such a
judgment[5].
17. What is here apprehended is that Egis will pay $1.74M to Tall Wind so that it receives
payment of this debt in full. The TOJV parties, if successful, and with insufficient insurance
cover, will rank with other unsecured creditors. The order sought is to have the effect of
giving the TOJV parties the opportunity of preventing this preferential payment being made,
although the apprehended payment would not be set aside as an undue preference pursuant to
s. 565 of the Corporations Act because there is little prospect of the TOJV parties obtaining
s. 565 of the Corporations Act because there is little prospect of the TOJV parties obtaining
judgment within the relevant period. Against this, counsel for Egis asserted his client's right to
pay its creditors or any of them as it chose to pay. It is clear enough that a Mareva order ought
not to be made to prevent a company from paying its ordinary trade creditors in the ordinary
course of its business[6], but the presently apprehended payment does not fall within this
class.
18. I turn now to the orders sought. Those in paragraphs 1 and 2 seek details of all transactions
between Egis and Tall Wind and of the sale from Egis to GHD. These orders can be made
only insofar as they are in aid of Mareva relief[7]. They are concerned with transactions
which, on the evidence, have already been entered into and are not amenable to Mareva relief.
To my mind these paragraphs go beyond orders in aid of orders necessary to restrain Egis
from future dispositions[8]. I will not make them.
19. Proposed order 3 seeks to compel Egis to give 14 days' notice of a proposed disposition of
assets herein described, otherwise than by a payment to trade creditors in the ordinary course
of its business. As I have mentioned, the effect of such a disposition will be in part to destroy
the value of the order for damages which the TOJV parties hope to recover. Given the
circumstances of the transactions which have led to this apprehended payment and to the
consequence of such a payment as I have found it, I will make the order sought.
---
[1] Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG; "The
Niedersachsen" [1983] 2 Lloyd's Rep 600 at 609, per Mustill J and at 619 per CA.
[2] Page 525.
[3] Mercedes Benz AG v Leiduck [1996] 1 AC 284 at 303, per PC.
[4] Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 53, per Young CJ.
[5] Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG; "The
Niedersachsen" [1983] 2 Lloyd's Rep 600 at 605-606, per Mustill J and at 617-18 per CA
and the cases there referred to; Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162
CLR 612.
[6] The Angel Bell [1981] 1 QB 65 at 73; Avant Petroleum Inc v Gatoil Overseas Inc [1986]
2 Lloyd's Rep 236 at 242.
[7] Ashtiani v Kashi [1987] QB 888 at 897, per Dillon LJ.
[8] Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612.
AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/vic/VSC/2002/315.html
HOME FORUM GALLERY CLASSIFIEDS ABOUT US ADVERTISE INSURANCE CONTACT
Ads by Google Emergency Preparedness EMT Training Emergency Training EMT Training Course EMT Training Schools

Search Search

GM Inside News Forum > Discussion Area > Holden and Australian Automobile Industry
Discussion
Sydney's New Lane Cove Tunnel Collapses
User Name User Name Remember Me?
Password Log in
Register Home Forum Active Topics Ford Inside News Media Gallery
MCSE Certification
Free Access - Your Own Virtual Lab! Repeatedly
Awarded Best Content
www.eCertIT.com.au
Cert IV TAE40110
RPL, Self Paced, Affordable. Course over 7 Days
incl Homework
HBAlearningcentres.com.au
Training and Assessment
Certificate IV in Training and Assessment. Start
right away!
www.InspireEducation.net.au/TAA
Accredited Training
Courses at Wagga / Riverina. Start anytime! One
to One.
myRCC.com.au
GmInsidenews.com is the premier GM Forum on the internet. Registered Users do not see the above ads.
LinkBack Thread Tools Display Modes
11-02-2005, 03:22 AM
#1 (permalink)
JoeT
Australian Editor


Join Date: Nov 2004
Location: Wollongong,
Australia
Drives: 2003 Holden Monaro
CV8
Posts: 6,677
Sydney's New Lane Cove Tunnel Collapses
Collapsing Unit Evacuated
Samantha Baden, Katherine Danks & Amy Fallon 02/11/05
www.news.com.au
Up to 50 residents of a Sydney block of units may need to be re-housed after fleeing the collapse
of part of a major road tunnel project.
One corner of the three-storey block of units was today left teetering over a massive hole that opened up
following the collapse of a section of the $1.1 billion Lane Cove Tunnel project.
Forty-seven residents fled their units at about 2.30am (AEDT) after being woken by a loud rumbling
sound.
Others were woken and evacuated by firefighters.
The hole is currently 10m deep... and growing / AP Tunnel vision
They emerged to find a hole opening up under the front of their building, which led to an air vent in the
partly-completed tunnel project.
As the 10-metre deep hole widened, sections of the unit block on Longueville Road at Lane Cove began
crumbling into the pit, followed by at least one tree.
Tunnel workers soon began pumping hundreds of cubic metres of concrete into the gaping hole to try to
prop up the units.
For hours, parts of a bottom floor unit and balcony were left tilting alarmingly before they too collapsed
late this afternoon, plunging items of furniture into the crevasse.
Resident Neil Smith said early today there was "a massive great big hole in the pavement and it goes all
the way to the tunnel, you can't see an end to it".
Unit owner Guy Morrow said: "We woke to a cracking sound in the walls, which was quite eerie and was
hard to figure out what that sound was about.
"We heard a big thud and decided that we should get out when we saw that there was this huge crack
that came across the bedroom wall and the living room wall that was the scariest moment."
No-one today would accept responsibility for the 10 metre-wide hole, which tunnel builders Leighton
Holdings said was caused by an "unforeseen geological event".
However, the New South Wales Government said the residents, who were refused permission to
immediately return to their homes and were instead put in a hotel, were entitled to compensation.
Assistant Police Commissioner Mark Goodwin said the building, containing 26 units, may have to be
demolished.
"It is quite unstable, it is yet to undergo an engineering assessment in terms of whether part or the whole
of the building can be saved," he told ABC radio.
Asked when he would be able to return home, resident Robert Colquhoun said: "Certainly not this week,
I'd question whether it's next week and from then on it's anyone's guess."
Grant Philipp, the owner of the ground floor unit which fell into the hole, said the block's body corporate
had building insurance estimated at about $20 million.
He added: "I'm actually fairly happy. It's been a bit of a nightmare since I bought the place so it's
probably the best thing that could happen to it if it falls into a hole."
The tunnel operators, Leighton subsidiaries Thiess and John Holland Group, said they had insurance to
cover the incident, which caused Leighton's share price to fall sharply.
Leighton agreed affected residents should be compensated but said it was too early to speculate on who
would foot the bill. It is conducting its own investigation.
Rock slippage is believed to have caused the cave-in, which caused traffic mayhem on Epping Road, a
major arterial road.
The NSW Opposition called for work on the tunnel to halt while a safety audit was carried out.
"There's no doubt in my mind ... the Government have clearly tried to accelerate the program," said
Opposition leader Peter Debnam.
However, Leighton denied it was a "rush job".
"We have absolutely not been taking any shortcuts," said David Saxelby, a spokesman for Thiess John
Holland.
NSW Premier Morris Iemma promised a full investigation and to fight for compensation for the residents.
The tunnel is a public-private partnership between the Roads and Traffic Authority, the Government and
private enterprise.
The twin toll roadways, due to be completed in the first half of 2007, will connect the Gore Hill Freeway
at Artarmon with the M2 at East Ryde, completing Sydney's orbital road network.
Remove Advertisements
__________________
Got any Holden info you want to tell? Message me
Follow GMInsidenews and myself on Twitter
Join GMInsidenews on Facebook today!
Last edited by JoeT; 11-02-2005 at 11:13 PM.

Sponsored Links
GM Inside News
Advertisement

11-02-2005, 11:04 PM
#2 (permalink)
JoeT
Australian Editor


Join Date: Nov 2004
Location: Wollongong,
Australia
Drives: 2003 Holden Monaro
CV8
Posts: 6,677
Re: Sydney's New Toll Tunnel Woes
Here's a video of the Lane Cove Tunnel Collapes from ABC.com.au
http://media.putfile.com/Lane-Cove-Tunnel-Collapes
New South Wales is dead set falling apart.
Whats next? The Harbour Bridge falling down!
Anything is possible under this government.
__________________
Got any Holden info you want to tell? Message me
Follow GMInsidenews and myself on Twitter
Join GMInsidenews on Facebook today!

11-03-2005, 12:01 AM
#3 (permalink)
Swahili
GMI Staff Member

Re: Sydney's New Lane Cove Tunnel Collapses
Other than the fact the tunnel collapsed, I think it's a pretty neat idea to have tolled tunnel roadways. Is
this a first in the world? Is this project the first of its kind in Australia? Hopefully they get things fixed up
quickly but properly, I wouldn't be happy if I was a resident in those flats.
__________________
2000 Chevy Monte Carlo SS. Black, 3800 Series II V6, 4 speed automatic - 150,500km.
SEEK.com.au/Profile Ads by Google