Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd [2021] NSWSC 1527

Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd [2021] NSWSC 1527

Clause 40 and Schedule 20 of the EPC Contract applied to the dispute because the contract required disputes arising from its interpretation to be dealt with through the agreed dispute resolution mechanism, and Acciona did not establish a sufficient discretionary reason to avoid that bargain. The proceedings were then to be transferred because the interests of justice made the Supreme Court of Western Australia the more appropriate forum: the project, likely factual issues, witnesses, many solicitors, governing law, and contractual submission to Western Australian courts all pointed to Western Australia, while the New South Wales connections were limited and of little weight.

Jurisdiction
Australia
Judgment Date
23 November 2021
Procedural Posture
Equity Commercial List Procedural Ruling Concerning Stay of Proceedings and Cross Vesting Transfer / Notice of Motion by the First Defendant/applicant for Stay Pending Compliance With Contractual Dispute Resolution Procedures and Transfer to the Supreme Court of Western Australia
Outcome
Proceedings stayed pending compliance with the dispute resolution mechanism in Schedule 20 of the EPC Contract; upon expiry of the stay or alternatively, proceedings transferred to the Supreme Court of Western Australia; plaintiffs ordered to pay the First Defendant's costs of the application.
Legal Topics
['stay of Proceedings' 'contractual Dispute Resolution Mechanism' 'force Majeure Disputes' 'transfer Between Supreme Courts' 'forum Appropriateness']
['civil Procedure' 'contract Law' 'cross Vesting'] ['stay of Proceedings' 'contractual Dispute Resolution Mechanism' 'force Majeure Disputes' 'transfer Between Supreme Courts' 'forum Appropriateness']

Case Brief

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Procedural Posture

Equity Commercial List Procedural Ruling Concerning Stay of Proceedings and Cross Vesting Transfer / Notice of Motion by the First Defendant/applicant for Stay Pending Compliance With Contractual Dispute Resolution Procedures and Transfer to the Supreme Court of Western Australia

Legal Issues

  1. 1 ['Whether the proceedings should be stayed pending compliance with the dispute resolution mechanism in Schedule 20 to the EPC Contract.' 'Whether cl 40 of the EPC Contract was engaged by the dispute, including where Acciona relied on correspondence under the Consent Deed and the Security Trustee had interests.' 'Whether the Court should refuse a stay as a matter of discretion because the proceedings concerned construction issues, were brought during ongoing mediation, or delay damages might be accruing.' 'Whether, upon expiry of the stay or alternatively, the proceedings should be transferred to the Supreme Court of Western Australia under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).']

Ratio Decidendi

Clause 40 and Schedule 20 of the EPC Contract applied to the dispute because the contract required disputes arising from its interpretation to be dealt with through the agreed dispute resolution mechanism, and Acciona did not establish a sufficient discretionary reason to avoid that bargain. The proceedings were then to be transferred because the interests of justice made the Supreme Court of Western Australia the more appropriate forum: the project, likely factual issues, witnesses, many solicitors, governing law, and contractual submission to Western Australian courts all pointed to Western Australia, while the New South Wales connections were limited and of little weight.

Court Disposition

Proceedings stayed pending compliance with the dispute resolution mechanism in Schedule 20 of the EPC Contract; upon expiry of the stay or alternatively, proceedings transferred to the Supreme Court of Western Australia; plaintiffs ordered to pay the First Defendant's costs of the application.

Orders

  • ["Order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) or alternatively the Court's inherent jurisdiction that the proceedings be stayed until further order of the Court, pending compliance with the dispute resolution mechanism in Schedule 20 of the EPC Contract." 'Upon expiration of the stay in paragraph 1...