SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3898 of 2009
| E A NEGRI PTY LTD (ACN 006 251 127) | |
| Applicant | |
| v | |
| TECHNIP OCEANIA PTY LTD (ACN 062 878 719) | Respondent |
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JUDGES: | WEINBERG JA and ROSS AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 FEBRUARY 2010 | |
DATE OF JUDGMENT: | 12 MARCH 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 44 | |
JUDGMENT APPEALED FROM: | [2009] VSC 543 (Vickery J) | |
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PRACTICE AND PROCEDURE – Whether primary judge erred in dismissing application to stay, or strike out, amended counterclaim – Whether primary judge erred in refusing separate trial of claims made against third party in amended counterclaim – Decisions interlocutory – Whether attended by sufficient doubt to warrant grant of leave to appeal – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G H Golvan SC with Mr J M Shaw | Tisher Liner & Co |
| For the Respondent | Mr P W Almond QC with Mr P Neskovcin | Clayton Utz |
WEINBERG JA
ROSS AJA:
The Woodside Otway Gas Plant Project (‘the Project’) is a major development involving the construction of a gas plant at Port Campbell. Woodside Energy Ltd, the developer, engaged Technip Oceania Pty Ltd (‘Technip’), the respondent to this application, as the main contractor to undertake the construction of the plant. Technip, in turn, engaged Vetco Aibel Australia Pty Ltd[1] (‘Vetco’) to be general works sub-contractor on the Project. Under its contract with Technip, Vetco was permitted to sub-contract works to third parties, in which event Vetco would be reimbursed by Technip for the costs of those works, together with a fee of 8.66%.
[1]Now known as Aibel Pty Ltd.
The applicant, E A Negri Pty Ltd (‘Negri’), is a civil works and plant hire contractor. By two agreements dated 15 November 2004 (later modified), and 12 January 2005, Negri was retained by Vetco to carry out earthworks and road construction on the Project. Those works were substantially completed by about June 2005. On 20 June 2005, Technip, as principal, and Negri, as sub-contractor, entered into an oral agreement whereby Negri would carry out additional works for which Technip would be directly responsible. The agreement was that Negri would be renumerated for the additional works in accordance with the existing rates and prices, as varied from time to time, charged by Negri to Vetco for carrying out the earlier works.
By Writ and Statement of Claim, dated 3 December 2008, Negri commenced proceedings against Technip in the Building Cases Division of the Commercial List of the County Court. It claimed that Technip had failed to pay for all of the additional civil works that Negri had undertaken. It sought to recover the outstanding amount of $9,830,833.24.
By its Defence and Amended Counterclaim, dated 10 March 2009, Technip denied Negri’s claim. Technip maintained that, in fact, it was owed $1,209,119 by Negri.[2] Put simply, it claimed that that sum was the product of a series of overpayments that had been made to Negri in the period leading up to…
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- Case
- [2010] VSCA 44
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the primary judge erred in dismissing the application to stay or strike out the amended counterclaim and whether the judge was correct in refusing the defendant’s request for a separate trial of the claims against the third party. The court had to consider whether the primary judge’s decisions were interlocutory and if there was a sufficient doubt about the correctness of the judge's decisions to warrant the grant of leave to appeal.
The court found that the primary judge's decisions were indeed interlocutory in nature. The court examined the circumstances and concluded that there was not enough doubt about the correctness of the primary judge's decisions to warrant the grant of leave to appeal. The court noted that the amended counterclaim was permissible and did not prejudice the plaintiff's right to a fair trial. Additionally, the court found that the denial of a separate trial for the claims against the third party was within the primary judge's discretion and did not constitute an error of law. Consequently, the appeal was dismissed.
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