Hooks Enterprises Pty Ltd v Sonnenberg Pty Ltd

SUPREME COURT OF QUEENSLAND

CITATION:

Hooks Enterprises Pty Ltd v Sonnenberg Pty Ltd & Ors  [2017] QSC 69

PARTIES:

HOOKS ENTERPRISES PTY LTD (ACN 010 082 998)

(plaintiff)

v

SONNENBERG PTY LTD (ACN 117 668 667)

(first defendant)

BRUCE QUENTIN SHELLY QUARTERMAN

(second defendant)

BENJAMIN POWELL GRIFFIN

(third defendant)

FILE NO/S:

BS No 11414/16

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

4 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

23 January 2017

JUDGE:

Daubney J

ORDER:

1.    The proceeding be stayed pending completion of the dispute resolution and expert determination procedure provided for in clause 12 of the Development Management Agreement dated 20 December 2012.

2.    I will hear the parties as to the costs of this application.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – INHERENT AND GENERAL STATUTORY POWERS – TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY – where a stay of the proceeding was sought on the basis of an alternative dispute resolution clause – where the parties had agreed to refer disputes to expert determination – whether the dispute is amenable to expert determination – whether there is a proper basis to exercise the discretion to allow the proceeding to continue – whether the proceeding should be stayed pending the performance of the dispute resolution process

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – INTERPRETATION OF MISCELLANEOUS CONTRACTS AND OTHER MATTERS – where the parties had agreed to an alternative dispute resolution procedure – where the procedure involved referral to expert determination – where the agreement did not prevent proceedings being brought – where proceedings had been commenced before the alternative dispute resolution procedure was commenced – whether the agreement still required the parties to participate in the alternative dispute resolution procedure

Channel Tunnel Group Ltd & Anor v Balfour Beatty Construction Ltd & Ors [1993] AC 334, cited

Dance with Mr D Ltd v Dirty Dancing Investments Pty Ltd [2009] NSWSC 332, cited

Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd [2012] QSC 290, cited

Santos Ltd v Fluor Australia Pty Ltd [2016] QSC 129, cited

Straits Exploration  (Australia) Pty Ltd v Murchison United NL (2005) 31 WAR 187, applied

Zeke Services Pty Ltd v Traffic Technologies Ltd [2005]
2 Qd R 563, considered

COUNSEL:

D de Jersey for the applicant defendants

R J Anderson QC for the respondent plaintiff

SOLICITORS:

Thynne & Macartney for the applicant defendants

Thomson Geer for the respondent plaintiff

Background

1. By a ‘Development Management Agreement’ (“DMA”) dated 20 December 2012, the first defendant was to provide certain services to the plaintiff, principally to obtain development approval to construct a fast food or convenience store (“the Project”) on the plaintiff’s property, and to facilitate construction of that development.

1. By mid-2016, no tenancies had been secured for the property and the final design for the construction of the Project had not been finalised.  On 5 September 2016, the plaintiff terminated the DMA.

1. On 4 November 2016,…