G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd [2019] NSWSC 407

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd [2019] NSWSC 407

An interlocutory injunction was warranted because there were serious questions to be tried as to whether a term should be implied requiring return of the Security after the Descoping Notice, whether the chaussette to cl 45.5 was enlivened, and whether either MACH Energy or MACH Operations was entitled to call on the Security; given those serious questions, and evidence of possible reputational and financial prejudice, the balance of convenience favoured restraining recourse to the Security pending determination.

Jurisdiction
Australia
Judgment Date
11 April 2019
Procedural Posture
Equity Technology and Construction List; Application for Interlocutory Injunction / Interlocutory Application
Outcome
Interlocutory injunction to be granted.
Legal Topics
['interlocutory Injunction' 'security Surety Bonds' 'recourse to Security' 'return of Security' 'contract Construction' 'no Injunction Clause' 'balance of Convenience']
['equity' 'contract Law' 'construction Law'] ['interlocutory Injunction' 'security Surety Bonds' 'recourse to Security' 'return of Security' 'contract Construction' 'no Injunction Clause' 'balance of Convenience']

Case Brief

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Procedural Posture

Equity Technology and Construction List; Application for Interlocutory Injunction / Interlocutory Application

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the Company was obliged to release the Security to the Contractors.' 'Whether there was a serious question to be tried that neither MACH Energy nor MACH Operations was entitled to call on the Security.' 'Whether cl 45.4 of the Contract permitted recourse to the Security before final determination of the disputed entitlement to money.' 'Whether the balance of convenience favoured granting interlocutory injunctive relief.']

Ratio Decidendi

An interlocutory injunction was warranted because there were serious questions to be tried as to whether a term should be implied requiring return of the Security after the Descoping Notice, whether the chaussette to cl 45.5 was enlivened, and whether either MACH Energy or MACH Operations was entitled to call on the Security; given those serious questions, and evidence of possible reputational and financial prejudice, the balance of convenience favoured restraining recourse to the Security pending determination.

Court Disposition

Interlocutory injunction to be granted.

Orders

  • ['MACH Energy Australia Pty Ltd and MACH Mount Pleasant Operations Pty Ltd are to be restrained from calling on the Security pending final determination of the question whether the Security must be returned.' 'The parties were invited to bring in short minutes to give effect to the reasons.']