Honeywell Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2023] NSWSC 663

Honeywell Ltd v Acciona Infrastructure Projects Australia Pty Ltd [2023] NSWSC 663

Non-disclosures by the plaintiff in seeking ex parte extension of time for service—specifically the failure to disclose the arbitration agreement and the contractual dispute resolution process—were innocent, not deliberate, and not serious; any non-disclosure was not material in the circumstances and would not have changed the outcome; hardship and injustice to the plaintiff if set aside would be disproportionate to any breach. Accordingly, the motion to set aside the extension orders was dismissed.

Parties
Plaintiff/respondent: Honeywell Ltd; First Defendant/applicant: Acciona Infrastructure Projects Australia Pty Ltd; Second Defendant/applicant: Lendlease Building Pty Ltd
Jurisdiction
Australia
Judgment Date
20 June 2023
Procedural Posture
Equity Technology and Construction List / Motion to Set Aside Ex Parte Orders Extending Time for Service
Outcome
Motion dismissed.
Legal Topics
Extension of Time for Service, Ex Parte Application, Material Non Disclosure, Limitation Periods, Arbitration Agreement, Dispute Resolution Clauses
Civil Procedure Contract Law Arbitration Extension of Time for Service Ex Parte Application Material Non Disclosure Limitation Periods Arbitration Agreement +1 more

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Parties

Honeywell Ltd

Plaintiff/respondent

Acciona Infrastructure Projects Australia Pty Ltd

First Defendant/applicant

Lendlease Building Pty Ltd

Second Defendant/applicant

Procedural Posture

Equity Technology and Construction List / Motion to Set Aside Ex Parte Orders Extending Time for Service

Legal Issues

  1. 1 Whether plaintiff failed to disclose material facts on ex parte applications for extension of time for service, including the existence of an arbitration agreement and failure to comply with dispute resolution procedure.
  2. 2 Whether extension orders should be set aside for material non-disclosure.
  3. 3 Whether the proceedings should be referred to arbitration under s 8(1) Commercial Arbitration Act 2010 (NSW).

Ratio Decidendi

Non-disclosures by the plaintiff in seeking ex parte extension of time for service—specifically the failure to disclose the arbitration agreement and the contractual dispute resolution process—were innocent, not deliberate, and not serious; any non-disclosure was not material in the circumstances and would not have changed the outcome; hardship and injustice to the plaintiff if set aside would be disproportionate to any breach. Accordingly, the motion to set aside the extension orders was dismissed.

Court Disposition

Motion dismissed.

Orders

  • Dismiss prayers 1 to 3 and 5 of the Notice of Motion filed on 9 March 2023.
  • Direct the parties to confer and provide Short Minutes of Order by 4.00 pm on 27 June 2023 regarding referral to arbitration under s 8(1) Commercial Arbitration Act 2010 (NSW), conditions to be imposed, and costs.