Barry Wight as Receiver and Manager of East Rockingham RRF Project Co Pty Ltd, East Rockingham RRF Finance Co Pty Ltd & East Rockingham RRF Hold Co Pty Ltd v Acciona Construction Australia Pty Ltd
[2025] WASC 472
•7 NOVEMBER 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BARRY WIGHT AS RECEIVER AND MANAGER OF EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD -v- ACCIONA CONSTRUCTION AUSTRALIA PTY LTD [2025] WASC 472
CORAM: HILL J
HEARD: ON THE PAPERS
DELIVERED : 7 NOVEMBER 2025
FILE NO/S: CIV 2241 of 2025
BETWEEN: BARRY WIGHT AS RECEIVER AND MANAGER OF EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD
JEREMY NIPPS AS RECEIVER AND MANAGER OF EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD
THOMAS BIRCH AS RECEIVER AND MANAGER OF EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD
CATHERINE CONNEELY AS RECEIVER AND MANAGER OF EAST ROCKINGHAM RRF PROJECT CO PTY LTD, EAST ROCKINGHAM RRF FINANCE CO PTY LTD & EAST ROCKINGHAM RRF HOLD CO PTY LTD
First Plaintiffs
EAST ROCKINGHAM RRF PROJECT CO PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) AS TRUSTEE OF THE THE EAST ROCKINGHAM RRF PROJECT
Second Plaintiff
EAST ROCKINGHAM RRF FINANCE CO PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED)
Third Plaintiff
EAST ROCKINGHAM RRF HOLD CO PTY LTD (ADMINISTRATORS APPOINTED) (RECEIVERS AND MANAGERS APPOINTED) AS TRUSTEE FOR EAST ROCKINGHAM RRF HOLD TRUST
Fourth Plaintiff
AND
ACCIONA CONSTRUCTION AUSTRALIA PTY LTD
First Defendant
ACCIONA INDUSTRIAL AUSTRALIA PTY LTD
Second Defendant
ACCIONA M&E PTY LTD (FORMERLY JOHN BEEVER (AUST) PTY LTD)
Third Defendant
KANADEVIA INOVA AG (FORMERLY, HITACHI ZOSEN INOVA AG) (COMPANY NUMBER
CHE-105.894.972)Fourth Defendant
KANADEVIA INOVA AUSTRALIA PTY LTD (FORMERLY, HITACHI ZOSEN INOVA AUSTRALIA)
Fifth Defendant
Catchwords:
Practice and procedure - Application for leave to issue writ for service outside Australia - Whether orders should take effect from earlier date - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 2 r 1, O 5 r 9, O 10 r 5
Result:
Leave to issue writ of summons for service outside Australia granted
Category: B
Representation:
Counsel:
| First Plaintiffs | : | No appearance |
| Second Plaintiff | : | No appearance |
| Third Plaintiff | : | No appearance |
| Fourth Plaintiff | : | No appearance |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
Solicitors:
| First Plaintiffs | : | Thomson Geer & Thomson Geer - Sydney & Thomson Geer - Sydney & Thomson Geer - Sydney |
| Second Plaintiff | : | Thomson Geer |
| Third Plaintiff | : | Thomson Geer |
| Fourth Plaintiff | : | Thomson Geer |
| First Defendant | : | Gilbert + Tobin |
| Second Defendant | : | Gilbert + Tobin |
| Third Defendant | : | Gilbert + Tobin |
| Fourth Defendant | : | DLA Piper |
| Fifth Defendant | : | DLA Piper |
Cases referred to in decision:
Eshelby v Federated European Bank Ltd [1932] 1 KB 423
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340
Re East Rockingham RRF Project Co Pty Ltd, East Rockingham RRF Finance Co Pty Ltd & East Rockingham RRF Hold Co Pty Ltd; Ex parte Wight, Nipps, Birch & Conneely as joint as several receivers and managers of East Rockingham RRF Project Co Pty Ltd, East Rockingham RRF Finance Co Pty Ltd & East Rockingham RRF Hold Co Pty Ltd [2025] WASC 414
HILL J:
On 31 October 2025, the plaintiffs filed a statement of claim. The writ was issued by the court with a notation that it was not for service out of the jurisdiction (Writ). This notation was required because the fourth defendant is a company registered in Switzerland and leave had not been sought to issue the writ against that defendant pursuant to O 5 r 9 of the Rules of the Supreme Court 1971 (WA) (Rules).
On 4 November 2025, the plaintiffs filed a notice of motion seeking orders for leave to be granted for the writ to be issued for service out of Australia to take effect from 31 October 2025, as well as orders for substituted service and an abridgement of time for the time periods within which defendants are required to file their notices of appearance.
In support of the notice of motion, the plaintiffs filed an affidavit of Jeremy Joseph Nipps, the second-named first plaintiff, on 4 November 2025.
On 5 November 2025, I indicated to the parties that I was minded to deal with the application on the papers, unless the parties wished to be heard in person. No-one objected to this proposed course or indicated they wished to be heard on the plaintiffs' application.
Factual background
The broad factual background to the plaintiffs' claim was canvassed in my reasons for decision in a related matter between the parties, being CIV 1665 of 2025 (which has now been consolidated with CIV 2390 of 2024) (Consolidated Action).[1] It is unnecessary for me to repeat that factual summary here. These reasons should be read together with those reasons. I have used the same defined terms in these reasons.
[1] Re East Rockingham RRF Project Co Pty Ltd, East Rockingham RRF Finance Co Pty Ltd & East Rockingham RRF Hold Co Pty Ltd; Ex parte Wight, Nipps, Birch & Conneely as joint as several receivers and managers of East Rockingham RRF Project Co Pty Ltd, East Rockingham RRF Finance Co Pty Ltd & East Rockingham RRF Hold Co Pty Ltd [2025] WASC 414 [4] ‑ [9] (Re East Rockingham).
On 23 October 2025, the plaintiffs issued a further direction and demand to KVI for the provision of documents not already provided by KVI. The plaintiffs say they are entitled to these documents under the terms of the EPC Contract (Direction). The plaintiffs contend that KVI has failed to comply with the Direction in breach of their obligations under the EPC Contract.[2]
[2] Affidavit of Jeremy Joseph Nipps filed 4 November 2025 [39] - [41], 'JJN-13'.
In the plaintiffs' submission, there is a close relationship between these proceedings and the Consolidated Action, as all matters concern the Project and EPC Contract. In particular, the plaintiffs highlight the fact that the relief sought in these proceedings is identical to that sought in their substituted statement of claim filed 23 October 2025 in the Consolidated Action (Statement of Claim).
The plaintiffs say that it was necessary to commence these proceedings to avoid a 'potential procedural technicality' arising from the Eshelby principle[3] on the basis that the Direction (and any cause of action relying on an alleged breach of the Direction) occurred after the commencement of the Consolidated Action. The plaintiffs have indicated they intend to seek orders for the consolidation of these proceedings with the Consolidated Action.[4]
[3] Eshelby v Federated European Bank Ltd [1932] 1 KB 423. This principle continues to apply with force in Western Australia: Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 16] [2017] WASC 340.
[4] Affidavit of Jeremy Joseph Nipps filed 4 November 2025, 'JJN-14'.
The solicitors for the fourth defendant have advised the plaintiffs' solicitors that they have instructions to accept service of the Writ on its behalf.[5]
[5] Affidavit of Jeremy Joseph Nipps filed 4 November 2025 [50].
Should leave be granted to issue the writ of summons for service outside of Australia?
The legal principles that govern this application was summarised in my reasons for decision on the previous application in CIV 1665 of 2025.[6] I do not propose to repeat them here. I have applied these principles in reaching my decision.
[6] Re East Rockingham.
The plaintiffs have filed a writ of summons indorsed with a statement of claim, which I have reviewed for the purposes of this application. The causes of action set out in the statement of claim are sufficiently verified by Mr Nipps in his affidavit.
In the letter accompanying the application, the plaintiffs have identified the provisions of O 10 of the Rules which their claims fall within. These include that the EPC Contract was to be wholly or partly performed in Australia and is governed by the laws of Western Australia (O 10 r 5(b)(iii) and O 10 r 5(b)(iv)); the documents sought by the plaintiffs are located in Australia, and, as such, the subject matter of the claim is located in Australia (O 10 r 5(e)); under the terms of the EPC Contract, the fourth defendant has irrevocably and unconditionally submitted to the non-exclusive jurisdiction of the courts exercising jurisdiction in Western Australia (O 10 r 5(k)); the claim is founded on a cause of action which arises in Australia (O 10 r 5(n)); and the fourth and fifth defendants have wrongfully detained the documents after a valid demand was made for their return (ie, a claim for detinue) (O 10 r 5(a)(ii)). In my view, the plaintiffs' claims in these proceedings fall within the categories of O 10 that have been identified.
Subject to the question as to what date these orders are to take effect from, I consider it is appropriate to grant leave to issue the proceedings pursuant to O 5 r 9 of the Rules.
What date should the orders take effect from?
For the reasons I gave in my previous reasons for decision, I accept the court has the power under O 2 r 1(2) of the Rules to make the orders sought by the plaintiffs.
In the circumstances of this case, for the following reasons, I accept that it is appropriate to make the order for leave to take effect as of 31 October 2025.
First, at the time the writ was issued, I accept there was a reasonable basis for the plaintiffs' belief that DLA Piper might accept service on behalf of the fourth defendant. While DLA Piper has now indicated it will accept service, I accept there is a question as to whether leave is still required under the Rules.
Second, had the application been made prior to the issue of the writ, I consider that leave would have been granted.
Third, there does not appear to be any substantive injustice that will be suffered by the fourth defendant if the orders sought by the plaintiffs are made.
Should the time for the defendants to file a memorandum of appearance be abridged?
The basis for the application for an abridgement of time is two‑fold: first, the plaintiffs say these proceedings are urgent; and second, the Consolidated Action is listed for a strategic conference on 19 November 2025.
In circumstances where these proceedings raise issues almost identical to those that are the subject of the Consolidated Proceedings, I consider it is appropriate to grant the abridgement of time for the filing of appearances. The defendants have already engaged solicitors and counsel in the Consolidated Action who are well versed with the issues raised by the plaintiffs. Given the Consolidated Action is listed for a strategic conference on 19 November 2025, I consider it would be consistent with the case management principles set out in O 1 r 4A and 4B of the Rules for this matter to be listed at the same time. The only way that this can occur is for the order sought by the plaintiffs to be made.
Conclusion and orders
For these reasons, I consider that leave should be granted for the writ to be issued for service outside Australia. The time for the defendants to file their appearance should be abridged to 4.00 pm on 12 November 2025 and these proceedings listed for a strategic conference at the same time as the strategic conference in the Consolidated Proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
7 NOVEMBER 2025
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