Alinta Cogeneration (Wagerup) Pty Ltd v Shanghai Electric Power Design Institute CO., Ltd
[2025] WASC 455
•27 OCTOBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ALINTA COGENERATION (WAGERUP) PTY LTD -v- SHANGHAI ELECTRIC POWER DESIGN INSTITUTE CO., LTD. [2025] WASC 455
CORAM: MUSIKANTH J
HEARD: 16 OCTOBER 2025 & 23 OCTOBER 2025
DELIVERED : 23 OCTOBER 2025
PUBLISHED : 27 OCTOBER 2025
FILE NO/S: CIV 2176 of 2025
BETWEEN: ALINTA COGENERATION (WAGERUP) PTY LTD
Plaintiff
AND
SHANGHAI ELECTRIC POWER DESIGN INSTITUTE CO., LTD.
First Defendant
SUNTERRA ENERGY PTY LTD
Second Defendant
Catchwords:
INTERLOCUTORY INJUNCTION - Urgent application by plaintiff for mandatory injunction - Whether serious question to be tried - Whether balance of convenience favours grant of injunction - Turns on own facts
Legislation:
Nil
Result:
Interlocutory injunctive relief granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr T J Porter |
| First Defendant | : | Ms K R Lendich SC (16 October 2025) Ms R O'Brien (23 October 2025) |
| Second Defendant | : | Ms K R Lendich SC (16 October 2025) Ms R O'Brien (23 October 2025) |
Solicitors:
| Plaintiff | : | King & Wood Mallesons |
| First Defendant | : | Finlaysons |
| Second Defendant | : | Finlaysons |
Case(s) referred to in decision(s):
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219
Centreplex Pty Ltd v Noahs Rosehill Waters Pty Ltd [2019] WASC 252
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544
Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3
JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA
JTA Le Roux Pty Ltd (as trustee for the FLR Family Trust) v Lawson (No 2) [2013] WASC 373
Kahu NZ Ltd v Aviation Utilities Pty Ltd [2022] WASC 405
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 162
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104
National Australia Bank v Adam [2025] WASC 265
Samsung C &T Corporation v Laing O’Rourke Australia Construction Pty Ltd [2015] WASC 83
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110
Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59
MUSIKANTH J:
The plaintiff (Alinta) is the principal of a battery storage facility currently under construction at the Wagerup Power Sation in the Peel region of Western Australia.[1]
[1] Affidavit of Kenneth John Woolley affirmed 15 October 2025 [9].
The defendants (Contractors) have control over certain components which Alinta says it owns and urgently requires to complete construction of the facility.
According to Alinta, it owns the components pursuant to the terms of a now-terminated contract with the Contractors executed in August 2023 (Contract).
By the Contract, the Contractors relevantly agreed they would undertake the engineering, procurement, construction and commissioning of the facility (Works) at the power station.[2]
[2] Affidavit of Kenneth John Woolley affirmed 15 October 2025 [16].
To complete the Works, the Contractors were required to procure the following five categories of components, and to deliver and install them onsite:
(a)330kv transformer accessories (Transformer Accessories);
(b)330kv coupling transformers (Transformers);
(c)330kv cables and accessories (Cables);
(d)inverter power conversion systems (Inverters); and
(e)battery storage units and battery accessories (Batteries).
The date for practical completion of the Works was to be 29 January 2025.
Completion of the Works was significantly delayed, and on 11 September 2025 Alinta issued a notice purporting to terminate the Contract effective immediately.
The Contractors dispute the validity of Alinta's purported termination but accept the Contract has come to an end.[3]
[3] Affidavit of Kenneth John Woolley affirmed 15 October 2025 [44] - [45].
On 12 September 2025, Alinta entered into a contract with Genus Industrial Services (Genus) to complete the remainder of the Works (Genus Contract).[4]
[4] Affidavit of Kevin Justin Arnold affirmed 14 October 2025 [9(b)].
The Genus Contract contemplates that the Works were ready and able to recommence on 16 October 2025 and be completed by 30 April 2026.
As at 11 September 2025, all of the relevant components remained under the control of the Contractors at a number of offsite locations in Western Australia.[5]
[5] Affidavit of Kenneth John Woolley affirmed 15 October 2025 [57] - [62].
Between 11 September 2025 and 8 October 2025, Alinta sent a series of post-termination direction notices and other written communications to the Contractors. In one of those communications, a letter dated 3 October 2025, Alinta unequivocally requested that the Contactors immediately deliver the components up.[6]
[6] Affidavit of Kenneth John Woolley affirmed 15 October 2025, Annexure KJW-22-A, 970.
On 8 October 2024, Genus collected the Transformer Accessories with the Contractors' consent. However, the Contractors did not also make the Transformers, Cables, Inverters or Batteries available for collection.
On 14 October 2025, Alinta commenced these proceedings by writ and, at the same time, filed a chamber summons seeking urgent interlocutory relief.
Alinta pleads two distinct claims in the main action: breach of contract and a claim in detinue. It seeks, by way of final relief, declarations and a mandatory injunction for delivery up of the components.
By its chamber summons, Alinta relevantly seeks delivery up by way of an urgent interlocutory injunction.
Alinta says such delivery is urgent because the components are on the 'critical path' for the Works, there are key dates under the Genus Contract by which Genus must receive the components, and if the Contractors do not urgently release them to Alinta there will be even further delays in completing the Works in circumstances where completion is already delayed by over nine months and where total project costs are exceeding AUD $300,000 per day.
Alinta's application for chamber summons was initially listed for hearing before me on 16 October 2025.
At the hearing, the Contractors were represented by senior counsel who, with the benefit of only very short notice, requested the matter be adjourned to facilitate the filing of any responsive affidavit evidence and submissions.
Following conferral, and by agreement between the parties, programming orders were then made adjourning the matter for further hearing. The Contractors also agreed that an interlocutory injunction could issue requiring the Contractors to deliver up the Transformers and the Cables.
However, there was no similar agreement with respect to the Inverters and Batteries.
On 23 October 2025, the hearing of Alinta's application resumed.
At the conclusion of that hearing, I granted a further interlocutory injunction for delivery up of the Inverters and Batteries and indicated that my reasons would follow.
These are my reasons for making those orders.
The evidence
For the purposes of the application, I had regard to the following affidavit evidence, none of which was the subject of objection:
(1)Affidavit of Kevin Justin Arnold deposed 14 October 2025.
(2)Affidavit of Kenneth John Woolley deposed 15 October 2025.
(3)Affidavit of Juliana Nicole Jorissen deposed 17 October 2025.
(4)Affidavit of Bihui (Leon) Liang deposed 21 October 2025.
(5)Affidavit of Kevin Justin Arnold deposed 22 October 2025.
(6)Affidavit of Juliana Nicole Jorissen deposed 22 October 2025.
(7)Affidavit of Bihui (Leon) Liang deposed 23 October 2025.
Applicable legal principles
The principles governing the grant of injunctive relief are trite. In short, the court is required to undertake two enquiries: whether the plaintiff has made out a prima facie case, and whether the balance of convenience favours the grant of an injunction.[7]
[7] Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 [7] - [13] (Beech J); Mineralogy Pty Ltd v Sino Iron Pty Ltd [2016] WASCA 105 [87] (Newnes JA, Corboy J agreeing); Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 [65]; Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618, 618 - 623.
These enquires are not independent;[8] when the apparent strength of the applicant's case diminishes, the balance of convenience shifts further against the making of the injunction sought.[9]
[8] Mineralogy Pty Ltd v Sino Iron Pty Ltd [87]; Samsung C &T Corporation v Laing O'Rourke Australia Construction Pty Ltd [2015] WASC 83 [65]; Warner-Lambert Co LCC v Apotex Pty Ltd [2014] FCAFC 59 [70].
[9] Samsung C &T Corporation v Laing O'Rourke Australia Construction Pty Ltd [65].
To make out a prima facie case, it is unnecessary for the plaintiff to show it is more probable than not that it will succeed at trial. It is simply required that the plaintiff show a sufficient likelihood of success to justify the preservation of the status quo pending trial.[10] How strong that likelihood needs to be depends upon the nature of the rights the plaintiff asserts and the practical consequences likely to flow from the order the plaintiff seeks.[11]
[10] Mineralogy Pty Ltd v Sino Iron Pty Ltd [87]; Australian Broadcasting Corporation v O'Neill [65]; Beecham Group Ltd v Bristol Laboratories Pty, 620.
[11] Australian Broadcasting Corporation v O'Neill [65]; Beecham Group Ltd v Bristol Laboratories Pty Ltd, 622.
The second inquiry, regarding the balance of convenience, involves consideration as to whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs, or is outweighed by, the injury which the defendant would suffer if an injunction was granted.[12]
[12] Mineralogy Pty Ltd v Sino Iron Pty Ltd [87]; Australian Broadcasting Corporation v O'Neill [65]; Beecham Group Ltd v Bristol Laboratories Pty Ltd, 622 - 623.
The ultimate task for the court is to balance the risk of injustice, and in so doing consider the nature and consequences of the injunction sought.[13]
[13] Twinside Pty Ltd v Venetian Nominees Pty Ltd [12]. Cf. Samsung C &T Corporation v Laing O'Rourke Australia Construction Pty Ltd [67].
The test to be applied on an application for an interlocutory injunction is no different whether the application is for a mandatory injunction or a prohibitory injunction.[14]
[14] Mineralogy Pty Ltd v Sino Iron [76] - [86] (Newnes JA, Corboy J agreeing). See also Centreplex Pty Ltd v Noahs Rosehill Waters Pty Ltd [2019] WASC 252 [21] - [33] (Le Miere J), Kahu NZ Ltd v Aviation Utilities Pty Ltd [2022] WASC 405 [25] (Solomon J); National Australia Bank v Adam [2025] WASC 265 [48] (Strk J).
That said, there are sometimes particular considerations which may weigh against the grant of a mandatory injunction. They include where any grant of such an injunction would deprive the respondent of a full hearing of the issue if the effect of the order would be final determination of the proceedings.[15]
[15] JTA Le Roux Pty Ltd (as trustee for the FLR Family Trust) v Lawson (No 2) [2013] WASC 373 [23] (Edelman J).
Indeed, often (though not always) the fact that mandatory relief is sought will 'tilt the balance of convenience in the defendant's favour' when the 'normal tests' are applied.[16]
[16] Mineralogy Pty Ltd v Sino Iron Pty Ltd [85] (Newnes JA, Corboy J agreeing, referring to Meagher, Gummow & Lehane's Equity Doctrines and Remedies (5th ed, LexisNexis Butterworths, 2015)).
The Contract
Before proceeding further, it is convenient to briefly identify aspects of the Contract relied upon by Alinta.
As noted earlier, the parties relevantly agreed that the Contractors would procure, deliver and install the components onsite.
It is common ground that the Inverters and Batteries are 'Contractor Goods' within the meaning of the Contract.
'Contractor Goods' are defined, in cl 1.1 of the Contract, as:
… the physical works, equipment, goods, and other tangible property (including software installed in them) provided, or to be provided, to [Alinta] in the [Contractors'] performance of [the Contract], including rectification work.
Two provisions of the Contract are of particular significance to Alinta's claim that the Contractors are obliged to deliver up the Inverters and Batteries.
The first is a provision dealing with the passing of title in Contractor Goods to Alinta in certain circumstances (cl 24.3), while the second is a provision which deals with obligations of the Contractors on termination (cl 34.5).
Clause 24.3 reads:
24.3 Title in work
(a)Where a Payment Milestone involves Contractor Goods being ready for dispatch, achieving a stage during transportation or being delivered, title in the Contractor Goods will pass to [Alinta] upon payment by [Alinta] of the Payment Milestone Amount for the Payment Milestone.
(b)Where a Payment Milestone involves the performance of Work at the Site, title in the Contractor Goods or parts of the Facility created or provided in the performance of the Work will pass to [Alinta], to the extent it has not already passed, upon payment by [Alinta] of the Payment Milestone Amount for the Payment Milestone.
(c)Title in Contractor Goods and the parts of the Facility will pass to [Alinta], to the extent it has not already passed, upon installation at the Site or delivery to the Site (where installation is not required).
(d)Title in the Contractor Goods and Facility will pass to [Alinta], to the extent it has not already passed, upon the Date of Practical Completion.
(emphasis added)
The expression 'Payment Milestone' is defined in cl 1.1 of the Contract as 'each 'Payment Milestone' specified in Schedule 2, while 'Payment Milestone Amount' is defined as 'for a Payment Milestone, the relevant 'Payment Milestone Amount' specified in Schedule 2, as adjusted in accordance with this agreement'. Schedule 2 sets out 58 Payment Milestones, and a Payment Milestone Amount payable by Alinta for each.
Except for the first milestone (advanced payment), each other milestone is referable to a particular event in the life of the Contract. Relevantly, for present purposes, many of the milestones refer to events associated with the components such as: PO placement, bill of lading,[17] delivery to site and installation.
[17] Sic 'bill of landing'.
The second provision in the Contract significant to Alinta's claim is cl 34.5. It reads:
34.5Obligations on termination
Upon termination of this agreement, the [Contractors] must immediately:
(a)cease performing the Work;
(b)except to the extent required to ensure the Facility and Contractor Goods at the Site are secure and safe, remove the Temporary Works and Construction Equipment from the Site;
(c)after ensuring the Facility and Contractor Goods at the Site are secure and safe, leave the Site;
(d)return the Principal Supplied Items, and any property of [Alinta] in the possession or control of the [Contractors] or a Contractor Associate, to the Principal;
(e)if and as requested by [Alinta], give [Alinta] any Contractor Goods in the possession or control of the [Contractors] or a Contractor Associate, provided [Alinta] pays a reasonable amount for any Contractor Goods which have not been paid for in any other Payment Milestone Amount made under this agreement;
(f)if and as requested by [Alinta], ensure subcontracts to which clause 9.5 applies are novated to [Alinta] (provided [Alinta] pays the amounts required by clause 9.5); and
(g)give [Alinta] a copy of any designs, drawings, specifications, records and other documents relating to the Work in the possession or control of the [Contractors] or a Contractor Associate and reasonably requested by [Alinta] for the purpose of:
(1)completing the design, manufacture, supply, construction, testing and commissioning of the Facility; or
(2)operating, maintaining, repairing, upgrading, altering, selling or financing the Facility.
(emphasis added)
Several other aspects of cl 34 are also of potential relevance to the matters argued before me. They include cl 34.6 (headed 'Rights on termination'[18]) upon which Alinta also placed some reliance, and cl 34.1 to 34.4 which record various ways in which the Contract might be terminated (i.e. Contractor default or insolvency, Principal default or insolvency, force majeure and Contractor convenience).
[18] Emphasis added.
Serious question to be tried
For present purposes, the primary issue is whether Alinta has demonstrated there is a serious question to be tried that the Contractors are obliged to immediately deliver up the components which are still under the control of the Contractors: the Inverters and the Batteries.
Alinta effectively says the Contractors owe this obligation for the following reasons.
(1)Before the Contract was terminated, Alinta fully paid the Payment Milestone Amounts for Payment Milestones involving the Inverters and Batteries being 'ready for dispatch'. Title in the Inverters and Batteries therefore passed to Alinta by force of cl 24.3. Accordingly, the Contractors were contractually obliged immediately to deliver up the Inverters and Batteries to Alinta, being 'property of [Alinta]', when the Contract terminated, by force of cl 34.5(d).
(2)The Contractors in any event also owed that obligation to Alinta at common law, following its letter of 3 October 2025 in which Alinta demanded delivery up. In this connection, Alinta enjoys a cause of action against the Contractors in detinue.
(3)Alternatively, the Contractors were required to deliver up the Inverters and Batteries subject to Alinta paying a 'reasonable amount' for those components pursuant to cl 34.5(e). On a proper construction of the clause, Alinta is not required to pay such an amount to the Contractors before the Contractors are obliged to deliver up the Inverters and Batteries. However, even if such a construction is wrong Alinta already paid the Contractors a 'reasonable amount' in that the total it has paid the Contractors for the various components exceeds what the Contractors had paid for them.
The Contractors do not dispute that Alinta has fully paid the Contractors the Payment Milestone Amounts for the Payment Milestones involving both the Inverters and the Batteries being 'ready for dispatch'.
Indeed, for the purposes of the interlocutory application the Contractors also properly accept that title in the Inverters and Batteries may have passed to Alinta for the purposes of cl 24.3(a).
Accordingly, I will confine my observations to Alinta's first and second arguments in considering whether it has shown a serious question to be tried.
I will do so against the backdrop of the propositions raised by the Contractors whose position was to the effect that Alinta's proposed construction of the Contract do not reach that threshold.
I understood the Contractors' position to be to the following effect:
(1)It is irrelevant whether Alinta obtained title in the Inverters and Batteries by operation of cl 24.3(a).
(2)This is because:
(a)cl 34.5(d) is inapplicable in the present circumstances because the Inverters and Batteries were never in Alinta's possession. Accordingly, they are not items which the Contractors are obliged to 'return' to Alinta;[19] and
(b)cl 34.5(e) is the only relevant provision which addresses what is to happen to Contractor Goods (irrespective of title) in the control or possession of the Contractors after termination and is not 'overridden' by cl 34.5(d).[20]
(3)On a proper construction of cl 34.5(e) any obligation for immediate delivery up of the Contractor Goods is predicated on two conditions being satisfied:
(a)there must be a request from Alinta for such goods to be delivered;[21] and
(b)if Alinta has not 'paid for' the Contractor Goods, then it must pay a 'reasonable amount' for such goods before delivery occurs; such 'reasonable amount' being a total of AUD$16,605,890.[22]
[19] Defendants' submissions dated 21 October 2025 [18].
[20] Defendants' submissions dated 21 October 2025 [17].
[21] Defendants' submissions dated 21 October 2025 [5].
[22] Defendants' submissions dated 21 October 2025 [2].
In relation to (3) above, according to the Contractors:
(1)The term 'paid for', in cl 34.5(e), must bear its 'commonly understood meaning': that is, the goods must be paid for in full.[23]
(2)The amounts attributable to each of the Contractor Goods (including, relevantly, the Inverters and Batteries) are detailed in a breakdown of the contract price included in schedule 2 of the Contract.
(3)That breakdown relevantly assigns a total monetary value for the 'direct costs' attributable to, relevantly, the Inverters and Batteries (schedule 2, attachment 1).
(4)It is common ground that the full amount attributable to, relevantly, the Inverters and Batteries has not been paid; notably the payment amounts required for milestones involving their 'delivery to site' ('payment milestone amounts at execution date', schedule 2).
[23] Defendants' submissions dated 21 October 2025 [7].
The assessment of what is a 'reasonable amount' must therefore be ascertained by reference to circumstances such as the extent of the Works done in connection with the Contractor Goods at the time of termination.[24]
[24] Defendants' submissions dated 21 October 2025 [12].
The Contractors also submit Alinta's construction misconstrues the use of the term 'immediately' in the chapeau of cl 34.5. According to the Contractors, 'immediately' is merely 'the trigger for each action [to] be considered' and is only required once the above conditions are met. The Contractors suggest this is consistent with a plain reading of the clause and with the commercial reality of the transaction.[25]
Principles of construction
[25] Defendants' submissions dated 21 October 2025 [25], [28].
As was observed in Mineralogy Pty Ltd v Sino Iron Pty Ltd,[26] the principles applicable to the construction of written contracts have been established by decisions of the High Court and outlined in many cases in the Court of Appeal.[27]
[26] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 162 [59].
[27] For example Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42], JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 [67] - [72] and Electricity Generation and Retail Corporation trading as Synergy v EIT Kwinana Partner Pty Ltd [2022] WASCA 3 [230] ‑ [234].
They are, by way of summary as follows:
(1)The construction of a contract involves a determination of the meaning of the words of the contract by reference to its text, context and purpose. The starting point for the proper construction of a clause is the language used in the clause. In particular, one starts by identifying the possible meanings that the words chosen by the parties can bear.
(2)Ascertaining the meaning of terms in an instrument requires a determination of what a reasonable person would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract.
(3)The instrument must be read as a whole. A construction that makes the various parts of an instrument harmonious is preferable. If possible, each part of an instrument should be construed to have some operation.
(4)The general principle applicable to the construction of commercial contracts is that they should be given a businesslike interpretation. Absent a contrary intention, the court approaches such contracts on the basis that the parties intended to produce a result which makes commercial sense. This requires that the construction placed on the term or terms in question is consistent with the commercial object of the agreement. However, it must also be borne in mind that business common sense may be a topic on which minds may differ.
(5)Definitions do not have substantive effect. A definition is not to be construed in isolation from the operative provision(s) in which the defined term is used. Rather, the operative provision is ordinarily to be read by inserting the definition into it.[28]
[28] Mineralogy Pty Ltd v Sino Iron Pty Ltd [59].
Regarding the fourth point, as was noted in JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2]:[29]
(a)although reasonable minds might differ on business common sense, it is nevertheless accepted that if the language is open to two constructions, the preferred construction will be that which 'will avoid consequences which appear to be capricious, unreasonable, inconvenient or unjust, "even though the construction adopted is not the most obvious, or the most grammatically accurate"';[30] and
(b)where a constructional choice is available it is important to consider what a reasonable businessperson reading the relevant clause or agreement would understand it to mean.[31] It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purposes and objects to be achieved by it.[32]
Disposition – serious question to be tried
[29] JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112 [70] - [71] (Buss P & Vaughan JA, Beech JA agreeing at [244]).
[30] Their Honours referring to Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, 109.
[31] Their Honours referring to Sino Iron Pty Ltd v Mineralogy Pty Ltd [2019] WASCA 80 [298].
[32] Their Honours referring to Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 [47] and Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 [16].
As has been seen, it is unnecessary at this juncture for Alinta to show it is more probable than not that it will succeed at trial.
Therefore, it is not for the court now to determine whose proffered construction of the Contract will likely be accepted at any final hearing; let alone is it now for the court itself to undertake the construction process.
Rather, the court's task is simply to decide if Alinta has raised a serious question to be tried such that it may be said there is a sufficient likelihood of success to justify the grant of interlocutory injunctive relief.
In my view, Alinta has more than adequately done so.
I hold this view for at least two reasons.
First, I consider there to be a sufficiently sound basis, on a proper construction of cl 24.3(a), to conclude that title in the Inverters and Batteries passed to Alinta upon full payment of the Payment Milestone Amounts for Payment Milestones involving the Inverters and the Batteries being 'ready for dispatch'. As noted earlier, there is no dispute that payments for those particular milestones have been made in full.
Accordingly, it is in my view more than reasonably arguable that Alinta, as legal owner of the Inverters and Batteries, became entitled to require those items to be delivered up upon termination of the Contract (without prejudice to any other rights which the Contractors might enjoy under the Contract or otherwise at law).
Secondly, it would also seem to me to be more than reasonably arguable that when the Contract is read as a whole, and regard is had to matters of text, context and purpose, the property owned by Alinta which the Contractors are obliged to 'return', pursuant to cl 34.5(d), extends to any property owned by Alinta (and in the Contractors' possession) at the time of termination; that is, not merely property which might at some time in the past have happened to have been in Alinta's possession.
In my view such a construction would accord with what one might reasonably arguably expect to be at least two important purposes of cl 24.3: affording the protection of property ownership to Alinta as a safeguard against insolvency on the part of either Contractor, and facilitating Alinta's uninterrupted access to components critical to the continuation of work in a significantly costly and time-sensitive project in the event of termination (for any reason).
None of what I have just said is intended to suggest that the Contractors' proposed construction is incorrect let alone without merit.
Rather, it is simply that I consider that the construction proffered by Alinta to be of sufficient cogency to have tipped the scale in its favour. Alinta has therefore demonstrated a prima facie case.
Balance of convenience
It is common ground that all the components are essential for the Works to continue.
Nor is there any dispute that the Inverters and Batteries cannot feasibly be replaced or obtained 'at market' in a reasonable timeframe.[33]
[33] Affidavit of Kenneth John Woolley affirmed 15 October 2025, [75(b)] - [76].
Alinta requires access to those components before the Works can continue in any meaningful way.
As already noted, Alinta contends that each day of further delay of the Works will result in substantial cost.[34] That contention is made good by the evidence of Mr Woolley who deposes that Alinta's ongoing daily project costs are approximately AUD $78,177.60, while Genus will incur ongoing daily costs of approximately AUD $238,142.56.[35]
[34] ts 16 October 2025, 10 - 11.
[35] Affidavit of Kenneth John Woolley affirmed 15 October 2025, [87], [90].
Mr Woolley's affidavit also includes evidence to the effect that:
(1)Delays in the Works being completed have resulted in a loss of potential revenue of approximately $137,400 per day, since 23 July 2025, when the Delay Liquidated Damages Cap[36] was reached.[37]
(2)Another agreement may be jeopardised should the Works not be recommenced in the near future with a view to being completed by 1 April 2026.[38]
(3)The revenue to be derived from that other agreement is estimated to be AUD $19,865,565 for the period 1 April to 1 December 2026.[39]
[36] Payable by the Contractors pursuant to cl 19 of the Contract.
[37] Affidavit of Kenneth John Woolley affirmed 15 October 2025, [95].
[38] Affidavit of Kenneth John Woolley affirmed 15 October 2025, [107].
[39] Affidavit of Kenneth John Woolley affirmed 15 October 2025, [110].
On any view of the evidence, the costs of any further delay in Alinta having access to the Inverters and Batteries will be very significant indeed.
That said, the Contractors submit they will be significantly prejudiced if an injunction were granted. Should they be required to deliver up the Inverters and Batteries, the Contractors say they will then have to then engage in disputation and likely litigation with Alinta to seek payment of amounts which the Contractors contend Alinta owes them.
In that event, according to the Contractors, the current 'disputation' would be 'subsumed in the broader dispute about termination' which, together with other matters, will likely take considerable time to resolve.
On the other hand, the Contractors say that if an injunction is not granted Alinta will have 'several options': it could pay a 'reasonable amount' which the Contractors have proposed (i.e. CNY ¥4,918,726 for the Inverters and CNY ¥33,808,775 plus AUD $7,000,000 for the Batteries)[40] or it could negotiate with the Contractors to pay some 'different amount'.[41]
[40] Defendants' submissions dated 21 October 2025, [2].
[41] ts 23 October 2025, 53.
It may readily be accepted that the grant of an injunction requiring a party to release goods to another will not only result in the loss of whatever leverage the first party might have enjoyed until that point but may also lead to a real risk of protracted disputation and significant further cost to the first party.
However, in this case, I consider neither form of potential prejudice to the Contractors to be sufficient to outweigh the very real prejudice which I am satisfied Alinta will suffer if it is not given access to the Inverters and the Batteries now.
If the Contractors were ultimately to prevail at the end of any protracted dispute, it is reasonable to expect they would not only enjoy the financial benefit of any final determination in their favour but also an entitlement to seek recovery of their reasonable legal costs.
Importantly, Alinta has in the context of the current proceedings also given the usual undertaking as to damages. There was no suggestion Alinta would be unable to honour that undertaking, in full, should it fail at the final hearing.
Moreover, the Transformer Accessories, Transformers and Cables have already been delivered up. The Inverters and Batteries are gathering dust in storage. And the Contractors at no point suggested they had any other use for those components; whether for their own purposes or for the purposes of any other client or potential client.
In all the circumstances, I consider that the balance of convenience weighs strongly in favour of the grant of the injunction sought.
Conclusion
In conclusion, I was more than satisfied that Alinta had not only shown there to be a serious question to be tried but also that the balance of convenience weighs strongly in its favour.
It was for the above reasons that I granted the injunction referred to in paragraph 23 above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IL
Associate to the Hon Justice Musikanth
27 OCTOBER 2025
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