Kawasaki Heavy Industries, Ltd v Laing O'Rourke Australia Construction Pty Ltd

Kawasaki Heavy Industries, Ltd (the appellant) sought to restrain Laing O'Rourke Australia Construction Pty Ltd (the respondent) from calling upon performance bonds. The dispute arose from a construction contract, and the underlying dispute was subject to international arbitration.

The primary legal issue before the Court of Appeal was whether the appellant had established a sufficient case for an interlocutory injunction to prevent the respondent from drawing on the performance bonds. This required the court to consider whether there was a serious question to be tried and, if so, whether the balance of convenience favoured granting the injunction. The court also had to determine the principles applicable to interlocutory relief when the substantive dispute was to be resolved by an arbitral tribunal.

The Court of Appeal applied the established principles for granting interlocutory injunctions, which require the applicant to demonstrate a serious question to be tried and that the balance of convenience favours the grant of relief. The court found that the appellant had not satisfied the threshold of establishing a serious question to be tried in relation to its claim that the respondent was not entitled to call upon the performance bonds. Consequently, the balance of convenience did not favour the grant of an injunction.

Leave to appeal was granted, but the appeal was dismissed, with the appellant ordered to pay the respondent's costs.