E A Negri Pty Ltd v Technip Oceania Pty Ltd - [2010] VSCA 44

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] VSCA 44
Decision Date: 12 MARCH 2010

CaseChat Overview and Summary

E A Negri Pty Ltd, a plaintiff, brought an action against Technip Oceania Pty Ltd, the defendant, in the Federal Court of Australia. The dispute centred around an amended counterclaim by the defendant, which sought relief against a third party not initially named in the proceedings. The plaintiff moved to have the amended counterclaim dismissed or, in the alternative, struck out. Additionally, the defendant sought a separate trial for the claims made against the third party, which the plaintiff opposed. The primary judge dismissed the application to stay or strike out the amended counterclaim and also denied the request for a separate trial.

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.

Orders