G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 7)

[2022] NSWSC 1169

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 7) [2022] NSWSC 1169

Hearing dates:

18 August 2022; draft Redfern Schedules provided on 26 and 29 August 2022

Date of orders:

31 August 2022

Decision date:

31 August 2022

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Disclosure of documents to be given as set out in attached Redfern Schedules

Catchwords:

PRACTICE AND PROCEDURE – disclosure of documents – disputed categories – whether disclosure oppressive – whether documents relevant – whether there is duplication of categories – whether disclosure should be confined to documents created within a closed period

Cases Cited:

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd [2019] NSWSC 407

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 4) [2021] NSWSC 1052

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6) [2022] NSWSC 628

Category:

Procedural rulings

Parties:

G&S Engineering Services Pty Ltd (First Plaintiff/First Cross-Defendant)
DRA Pacific Pty Ltd (Second Plaintiff/Second Cross-Defendant)
DRA Group Holdings (Pty) Ltd (Third Cross-Defendant)
DRA Global Limited (Fourth Cross-Defendant)
MACH Energy Australia Pty Ltd (First Defendant/First Cross-Claimant)
MACH Mount Pleasant Operations Pty Ltd (Second Defendant/Second Cross-Claimant)
J.C.D. Australia Pty Ltd (Third Defendant/Third Cross-Claimant)

Representation:

Counsel:
M G Lyons with A Emmerson (Plaintiffs/Cross-Defendants)
N Simpson with E Ball (Defendants/Cross-Claimants)

Solicitors:
Jones Day (Plaintiffs/Cross-Defendants)
Corrs Chambers Westgarth (Defendants/Cross-Claimants)

File Number(s):

2019/71358

JUDGMENT

1. This is a further interlocutory dispute in these longstanding and substantial proceedings. The proceedings were commenced over three years ago. This will be the seventh interlocutory judgment.

2. The background is set out in a number of judgments of this Court, including my judgments of 11 April 2019^[1] and 17 May 2022,^[2] and that of Williams J of 23 August 2021. ^[3]

   1. G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd [2019] NSWSC 407.

   2. G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6) [2022] NSWSC 628.

   3. G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 4) [2021] NSWSC 1052.

3. In March 2017, the defendant/cross-claimants (“MACH”) contracted with the plaintiffs/cross-defendants (“CDJV”) for CDJV to design, construct and commission a coal handling and processing plant and train load-out facility at Mount Pleasant. The works were divided into separable portions, each with its own practical completion dates.

4. CDJV’s work fell into significant delay, which led to a series of extension of time claims and exchange of notices of dispute between the parties, beginning on 31 January 2018. This in turn led to negotiations between the parties during which CDJV allegedly made certain representations to MACH about what work it could complete, how it could do so and when. MACH alleges it relied on those representations to enter into a “Settlement and Variation Agreement” on 20 April 2018.

5. MACH alleges that, between 20 April 2018 and 3 May 2018, CDJV made further representations on which MACH relied in issuing a notice to CDJV on 3 May 2018 that certain conditions precedent to the Settlement and Variation Agreement were satisfied.

6. MACH alleges that each of the representations was false for various reasons, including that CDJV was insolvent or near insolvent, that CDJV had underestimated its costs to complete, that various matters affected CDJV’s ability to meet completion dates, and that CDJV’s programming and resourcing assumptions were inaccurate. MACH contends it had a reasonable expectation that it would be told about those matters.

7. MACH contends that its reliance on the representations was confined to the period between 31 January 2018, when CDJV gave its notice of dispute, and 3 May 2018, when MACH issued its notice that conditions precedent were satisfied (the “Reliance Period”).

8. I have now heard argument in relation to disputed categories of discovery.

9. The parties have prepared Redfern Schedules in which they have set out their competing contentions concerning the disputed categories.

10. It is agreed that I should record my decision in relation to those categories in the final column of those schedules.

11. The two schedules, incorporating the parties’ contentions and my decision, are attached to these reasons.

12. One issue that divided the parties was whether certain categories of documents could only be disclosed in relation to the Reliance Period.

13. The view I have taken is that, although it may be that documents generated within the Reliance Period would be those of primary importance, there may well be documents before and after the Reliance Period which contain material relevant to the parties’ competing contentions about the issues in the case.

14. Another issue that has arisen is as to whether particular disputed categories duplicate disclosure to be given under other, undisputed, categories. It has not been possible for me to form any firm conclusion about whether there is such duplication. In any event, if there is, that should not cause undue difficulty.

15. A further issue that has arisen in relation to a number of categories is as to whether it will be oppressive for the relevant party to locate the documents called for. Again, I have found it difficult to resolve the competing contention as to oppression. The larger point is that, in the context of this complex and high value dispute, the time and estimated cost of complying with some of the discovery categories sought is not out of proportion to the amount at play in the proceedings.

16. Finally, in relation to many categories, there is a dispute as to the relevance of the documents sought. Competing, detailed contentions as to relevance may be found in the Redfern Schedules in relation to many of the disputed categories. Without, in effect, conducting a trial of the proceedings, it has not been possible for me to come to a firm conclusion that the categories of documents sought are irrelevant. For that reason, I have, generally speaking, allowed the disputed categories.

17. My conclusions are as set out in the attached Redfern Schedules.

18. I stand the matter over for further directions on 16 September 2022 before the Technology and Construction List Judge.

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Attachments

Redfern Schedule 1 

Redfern Schedule 2

Endnotes

Amendments

13 September 2022 - Amendment to Redfern Schedule 1

Decision last updated: 13 September 2022