Downer EDI Rail Pty Ltd v John Holland Pty Ltd; Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd [2017] NSWSC 529

Downer EDI Rail Pty Ltd v John Holland Pty Ltd; Kellogg Brown & Root Pty Ltd v John Holland Pty Ltd [2017] NSWSC 529

It would be unwise and potentially erroneous to construe the critical provisions of the contracts in isolation and before all evidence is adduced; separate determination of the proposed questions is refused as it is not appropriate in the circumstances.

Jurisdiction
Australia
Judgment Date
03 May 2017
Procedural Posture
Application / Interlocutory
Outcome
Application for determination of separate questions refused
Legal Topics
['separate Determination of Questions' 'contract Construction' 'pure Economic Loss Exclusion' 'arbitration and Litigation Overlap']
['practice and Procedure' 'commercial Arbitration' 'construction Law'] ['separate Determination of Questions' 'contract Construction' 'pure Economic Loss Exclusion' 'arbitration and Litigation Overlap']

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Procedural Posture

Application / Interlocutory

Legal Issues

  1. 1 ['Whether issues as to the proper construction of the contract should be determined separately in advance of hearing' 'Whether an early separate determination would reduce the likely length of hearing' 'Whether the evidence of surrounding circumstances is necessary for contract construction' 'Whether similar questions arising in arbitration should be separately determined']

Ratio Decidendi

It would be unwise and potentially erroneous to construe the critical provisions of the contracts in isolation and before all evidence is adduced; separate determination of the proposed questions is refused as it is not appropriate in the circumstances.

Court Disposition

Application for determination of separate questions refused

Orders

  • ["John Holland's Notice of Motion of 6 March 2017 is dismissed with costs." "KBR's Summons (2017/69950): Leave granted pursuant to s 27J of the Commercial Arbitration Act 2010 (NSW) for questions to be determined concurrently with hearing of proceedings 2015/120806 in November 2017 as agreed by parties."]