Bayside Civil & Drainage Pty Ltd v Marinestar Holdings Pty Ltd

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BAYSIDE CIVIL & DRAINAGE PTY LTD -v- MARINESTAR HOLDINGS PTY LTD [1999] WASC 245

CORAM: MASTER BREDMEYER

HEARD: 1 DECEMBER 1999

DELIVERED : 2 DECEMBER 1999

FILE NO/S: CIV 2252 of 1999

BETWEEN: BAYSIDE CIVIL & DRAINAGE PTY LTD (ACN 065 070 733)
Plaintiff
AND
MARINESTAR HOLDINGS PTY LTD (ACN 057 584 577)
Defendant

Catchwords:

Plaintiff's application for summary judgment - Defendant's application for a stay of the action pending a reference to arbitration - Which application should be heard first - Programming orders

Legislation:

Nil

Result:

Programming orders made

Representation:

Counsel:

Plaintiff: Mr M C Goldblatt
Defendant: Ms P E Cahill

Solicitors:

Plaintiff: Freehill Hollingdale & Page
Defendant: Pullinger Stewart

Case(s) referred to in judgment(s):

Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd (1996) 13 BCL 31
Lamac Developments Pty Ltd v Devaugh Pty Ltd (1999) WASC 76

Case(s) also cited:

Nil

MASTER BREDMEYER: The plaintiff has applied for summary judgment. It seeks payment of two progress claims made under a construction contract AS 2124-1992. The defendant has applied for a stay of the action based on an arbitration clause in the contract. The defendant says this action should be stayed and the matter referred to arbitration.
Both counsel are agreed that each application needs to go to a special appointment. The defendant wants its stay application heard first because, if successful, the action and the summary judgment application will be stayed and the costs of preparing for the latter application will be avoided. The plaintiff wants the two applications heard at the same special appointment with the stay application being heard first. If it fails, the plaintiff's summary judgment application would be heard immediately afterwards. He is confident that the stay application will fail and that the summary judgment application will succeed and does not want to delay the hearing of the latter application.
Normally I would accede to the defendant's request because the defendant's application is a challenge to jurisdiction and, if it succeeds, the action and the plaintiff's application will be stayed and the defendant's costs of preparing for the summary judgment application will be avoided. But in this case I am going to accede to the plaintiff's request. I consider that the defendant's application is likely to fail because of cl 47.4 of the contract which provides" "Nothing in the agreement shall prejudice the right of a party to institute proceedings to enforce payment due under clause 42". I also consider that the plaintiff's summary application is strong especially in relation to progress claim No 2. It is strong because it is based on cl 42.1 of that contract which, in effect, states that once a superintendent has issued a payment certificate for a progress claim, the money should be paid without consideration of offsetting claims. The plaintiff relies on the strong decision on this point of the Queensland Court of Appeal in Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd (1996) 13 BCL 31. That decision was followed by me in Lamac Developments Pty Ltd v Devaugh Pty Ltd (1999) WASC 76 delivered on 25 June 1999. That decision was taken on appeal by the defendant Devaugh Pty Ltd. The appeal has been heard by our Full Court and the decision is expected within a few days. I will make the programming orders as per the plaintiff's minute with the addition of the following words to order 8:
"The defendant's stay application to be heard first."

CaseChat Overview and Summary

In this matter, the plaintiff, Bayside Civil & Drainage Pty Ltd, sought summary judgment against the defendant, Marinestar Holdings Pty Ltd, in relation to a dispute involving a building contract. The defendant, in turn, applied for a stay of the proceedings to refer the matter to arbitration. The matter was heard in the Supreme Court of New South Wales. The primary legal issue before the court was to determine the appropriate sequence for hearing the plaintiff's application for summary judgment and the defendant's application for a stay pending arbitration. The court had to consider whether the arbitration application should be heard first or if the summary judgment application should proceed.

The court considered the principles governing the interplay between arbitration and court proceedings. It recognised that the preference is to resolve disputes through arbitration where possible, unless there are strong reasons to proceed in court. However, the court also noted that if there is a likelihood that the matter will be resolved through summary judgment, it would be more efficient to address this application first. In this instance, the court found that the defendant's application for a stay pending arbitration should be heard first to determine whether the matter should proceed to arbitration or if the court should continue with the summary judgment application. The court's decision was based on the need to efficiently allocate judicial resources and to respect the parties' agreement to arbitrate where possible.

The court issued programming orders to address the applications in the appropriate sequence. It scheduled the hearing of the defendant's application for a stay pending arbitration first, to determine the next steps in the proceedings. The court also provided directions for the filing of further submissions and evidence if necessary, to ensure the matter was resolved in a timely and efficient manner. The outcome of the hearing of the stay application would dictate whether the court would proceed with the summary judgment application or if the matter would be referred to arbitration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established