Aalborg CSP A/S v Ottoway Engineering Pty Ltd

The appeal concerned a dispute between Aalborg CSP A/S, a Danish company, and Ottoway Engineering Pty Ltd, an Australian company, regarding a contract for the supply and fabrication of tubular steel towers for a solar-thermal-desal-energy system project. The contract, which was later varied to include labour supply, was the subject of an application for summary judgment. The appeal was heard by the Full Court of the Supreme Court of South Australia.

The primary legal issues before the Full Court were whether the Master erred in granting summary judgment to Ottoway, and whether Aalborg had established a reasonably arguable defence of misleading or deceptive conduct against Ottoway. The Court also considered the proper approach to summary judgment applications, particularly when a party raises a defence that requires further factual investigation.

The Full Court reasoned that the Master had erred in finding that Aalborg had not established a reasonably arguable answer of misleading conduct. The Court held that the evidence adduced on the summary judgment application was sufficient to raise a reasonably arguable case for Aalborg, and that the determination of whether all elements of this defence would be established required a full trial. The Court applied the principle that summary judgment should not be granted if there is a reasonably arguable defence, even if its ultimate success is uncertain.

Consequently, the Full Court allowed the appeal, set aside the Master's orders, and remitted the matter to proceed to trial.