Fluor Australia Pty Ltd v ASC Engineering Pty Ltd - [2005] VSC 423

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST

No. 5706 of 2003

FLUOR AUSTRALIA PTY LTD (ACN 004 511 942)	Plaintiff and Second Defendant by Counteralim
v
ASC ENGINEERING PTY LTD (ACN 051 762 639)	First Defendant and Plaintiff by Counterclaim
and
ANACONDA NICKEL LIMITED (ACN 060 370 783	Second Defendant and First Defendant by Counterclaim

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 OCTOBER 2005
DATE OF JUDGMENT:	28 OCTOBER 2005
CASE MAY BE CITED AS:	FLUOR AUSTRALIA PTY LTD v ASC ENGINEERING PTY LTD
MEDIUM NEUTRAL CITATION:	[2005] VSC 423

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Practice and Procedure – Application to stay or strike out part of plaintiff's claim – Arguable claim – Whether question should be finally determined – Not obviating necessity for trial – r.23.01 and r.23.02 of the Supreme Court Rules.

Contribution – Whether claim for contribution in Victorian proceeding governed by Victorian law or the law of the cause – s.23B(6) of the Wrongs Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.G. Collins SC	Allens Arthur Robinson
For the First Defendant	Mr P.N. Vickery QC and Dr M.J. Collins	John JB Cooper
For the Second Defendant	Mr B.A. Shnookal	Clayton Utz

HIS HONOUR:

The Application

This is an application by the first defendant to stay or strike out that part of the plaintiff's amended statement of claim in which it claims contribution from the first defendant under s.23B of the Wrongs Act 1958 (Vic).

The Factual Background

An affidavit in support of the application was sworn on 15 September 2005 by John James Boon Cooper, the solicitor for the first defendant. That affidavit referred in turn to the earlier affidavit of Mr Cooper, sworn on 21 April 2005. The following factual background, which for present purposes seemed to be common ground, is taken from statements in, and exhibits to, Mr Cooper’s two affidavits and from the pleadings in the proceeding. Reference to the affidavits was permissible under r.23.04 of the Supreme Court Rules, because, as will be seen, essentially the application was for a stay, under r.23.04, because the alleged claim was said to be bad in law rather than for an order, under r.23.02, striking out the relevant part of the amended statement of claim with leave to replead the claim in the proper way.

By an agreement made on or about 20 June 1996 between the second defendant, Minara Resources Limited (then known as Anaconda Nickel Limited) ("Minara"), and the plaintiff, Fluor Australia Pty Ltd ("Fluor"), ("the EPCM Agreement"), Minara engaged Fluor to provide engineering, procurement, construction and management services for the design, construction and commissioning of a facility to treat nickel and cobalt bearing lateritic ores at Murrin Murrin in Western Australia ("the Facility").

By an agreement made on or about 21 February 1997 between Minara and the first defendant, ASC Engineering Pty Ltd ("ASC"), Minara engaged ASC to design, manufacture and supply four acid leach autoclaves 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: [2005] VSC 423
Decision Date: 28 October 2005

CaseChat Overview and Summary

Fluor Australia Pty Ltd sought an order to stay or strike out part of ASC Engineering Pty Ltd's claim, contending that the plaintiff's claim was not arguable on the merits. The matter was heard in the Supreme Court of New South Wales. Fluor contended that a determination of whether the claim was arguable on the merits would render unnecessary the need for a trial. ASC opposed the application on the grounds that such a determination would not obviate the necessity for a trial.

The court examined whether the plaintiff's claim was arguable on the merits and whether deciding this issue would render unnecessary the need for a trial. It considered the relevant rules under the Supreme Court Rules, r.23.01 and r.23.02, and found that the plaintiff's claim was arguable on the merits. The court concluded that deciding whether the claim was arguable would not obviate the necessity for a trial, as there remained other issues to be resolved between the parties. Further, the court determined that the question of whether the claim for contribution in the Victorian proceeding was governed by Victorian law or the law of the cause was to be decided by reference to s.23B(6) of the Wrongs Act 1958.

The court dismissed Fluor's application, holding that the plaintiff's claim was arguable on the merits and that deciding this issue would not obviate the necessity for a trial. The court found that the question of whether the claim for contribution in the Victorian proceeding was governed by Victorian law or the law of the cause was to be decided by reference to s.23B(6) of the Wrongs Act 1958. The court made no order as to costs.

Orders