ENERFLEX PROCESS PTY LTD -v- KEMPE ENGINEERING SERVICES (AUSTRALIA) PTY LTD [2013] WASC 406

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 406
Case No:	CIV:2642/2013	Heard:	29 OCTOBER 2013
Coram:	LE MIERE J	Delivered:	15/11/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	ENERFLEX PROCESS PTY LTD KEMPE ENGINEERING SERVICES (AUSTRALIA) PTY LTD KIM DOHERTY
Catchwords:	Practice and procedure Interlocutory injunction No cause of action disclosed No prima facie case Balance of convenience
Legislation:	Construction Contracts Act 2004 (WA), s 3, s 4(3), s 26, s 31(2)(a), s 31(2)(b)
Case References:	ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, 208 CLR 199 O'Donnell Griffin Pty Ltd v Davis [2007] WASC 215 Perrinepod v Georgiou Building Pty Ltd [2011] WASCA 217 Re Graham Anstee-Brook; Ex Parte Karara Mining Ltd [2012] WASC 129

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ENERFLEX PROCESS PTY LTD -v- KEMPE ENGINEERING SERVICES (AUSTRALIA) PTY LTD [2013] WASC 406 CORAM : LE MIERE J HEARD : 29 OCTOBER 2013 DELIVERED : 15 NOVEMBER 2013 FILE NO/S : CIV 2642 of 2013 MATTER : An Application pursuant to Order 52 of the Rules of the Supreme Court BETWEEN : ENERFLEX PROCESS PTY LTD

Plaintiff

AND

KEMPE ENGINEERING SERVICES (AUSTRALIA) PTY LTD

First Defendant

KIM DOHERTY

Second Defendant

Catchwords:

Practice and procedure - Interlocutory injunction - No cause of action disclosed - No prima facie case - Balance of convenience

Legislation:

Construction Contracts Act 2004 (WA), s 3, s 4(3), s 26, s 31(2)(a), s 31(2)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M Christie SC & Mr M C Hotchkin

First Defendant : Mr P J Ward

Second Defendant : No appearance

Solicitors:

Plaintiff : Hotchkin Hanly

First Defendant : Ashurst Australia

Second Defendant : No appearance

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

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63, 208 CLR 199
O'Donnell Griffin Pty Ltd v Davis [2007] WASC 215
Perrinepod v Georgiou Building Pty Ltd [2011] WASCA 217
Re Graham Anstee-Brook; Ex Parte Karara Mining Ltd [2012] WASC 129

1 LE MIERE J: The plaintiff, Enerflex Process Pty Ltd (Enerflex), is constructing the Gorgon Domestic Gas Custody Transfer Meter Station for Chevron Australia as part of the Gorgon Natural Gas Project. The Gorgon Project includes the construction of a Liquefied Natural Gas Plant on Barrow Island off the North West coast of Western Australia. Enerflex entered into a contract with Chevron for the engineering, procurement, construction and pre-commissioning of the Meter Station. Included in the scope of work was the pipework to interconnect each of the Meter Station's main process units (Interconnecting Pipework). The Interconnecting Pipework transports gas through the Meter Station. Enerflex and the first defendant, Kempe Engineering Services (Australia ) Pty Ltd (Kempe), entered into a subcontract whereby Kempe was to fabricate, assemble, examine, post weld, heat treat and package Interconnecting Pipework for the Meter Station.

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: [2013] WASC 406
Decision Date

CaseChat Overview and Summary

Enerflex Process Pty Ltd, a contractor engaged by Chevron Australia for the construction of the Gorgon Domestic Gas Custody Transfer Meter Station, filed an application against Kempe Engineering Services (Australia) Pty Ltd and Mr Kim Doherty, an adjudicator appointed to adjudicate a dispute between Enerflex and Kempe. Enerflex sought an interlocutory injunction to restrain Kempe from proceeding with an adjudication application and to restrain Mr Doherty from making a determination regarding the adjudication application. The core legal issues were whether Enerflex's contract with Kempe was a construction contract under the Construction Contracts Act 2004 (WA), whether the adjudicator had jurisdiction to determine the adjudication application, and whether Enerflex had established a prima facie case warranting an interlocutory injunction.

The court found that there was a serious question to be tried whether the contract between Enerflex and Kempe was a construction contract as defined by the Act, and hence whether the adjudicator had jurisdiction to determine the adjudication application. The court noted that the pipeline work performed by Kempe could be argued as either part of the construction work or not, depending on its function and relationship to the processing of natural gas. However, the court found that at that stage of the proceedings, it was inappropriate to decide this issue. The court further held that Enerflex had not established a prima facie case against either Kempe or Mr Doherty because the writ of summons did not disclose a cause of action against either defendant. Enerflex's application for an interlocutory injunction was dismissed on the basis that it had not made out a prima facie case and, even if it had, the balance of convenience did not favour granting the injunction.

The court concluded that the application for an interlocutory injunction should be dismissed.

Orders