Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation: Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546
Hearing dates: 26 November 2021
Date of orders: 30 November 2021
Decision date: 30 November 2021
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Application for separate determination of a question of contractual construction refused

Catchwords:
CIVIL PROCEDURE – Separate determination of questions – where appropriate – whether an order should be made for the separate determination of a question of construction of the operative agreement

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW)

Category: Procedural rulings
Parties: Lendlease Corporation Limited (Plaintiff/Cross-Defendant)
Acciona Infrastructure Asia Pacific Pty Ltd (First Defendant/Cross-Claimant)
Corporacion Acciona Infraestructuras, S.L. B-87324455 (Second Defendant/Cross-Claimant)
Representation:
Counsel:
J Williams SC with T O’Brien (Plaintiff/Cross-Defendant)
J Stoljar SC with J Hewitt (Defendants/Cross-Claimants)
Solicitors:
Herbert Smith Freehills (Plaintiff/Cross-Defendant)
Clayton Utz Hewitt (Defendants/Cross-Claimants)

File Number(s): 2021/219818

Judgment

The plaintiff, Lendlease Corporation Limited (“Lendlease”) brings these proceedings to recover from the defendants (together “Acciona”) the “Second Deferred Payment” of some $60 million under a Share Sale Agreement (“the “SSA”) made on 19 December 2019 by which Lendlease sold to Acciona its shares in Lend Lease Construction Australia Holdings Pty Ltd.
Lendlease also seeks to recover from Acciona some $11 million on a separate basis.
Acciona has pleaded that its liability to pay the Second Deferred Payment has been extinguished by set-off based on the various claims for damages and indemnity, for which Acciona also sues by way of cross-claim.
By Amended Notice of Motion filed in Court on 26 November 2021, Lendlease seeks a separate hearing under Uniform Civil Procedure Rules 2005 (NSW) r 28.2 of the question whether any equitable right Acciona might have to such a set-off is “excluded by the terms of the [SSA] on its proper construction”.
Lendlease seeks such a separate hearing because, it is said, without the question being separately determined any right Lendlease has to payment of the Second Deferred Payment free of set-off will be rendered nugatory.
I am not persuaded that I should order the hearing of the proposed separate question.
Although Mr Williams SC, who appeared with Mr O’Brien for Lendlease submitted that Lendlease’s case on the proposed separate question would be confined within the four corners of the SSA itself, he accepted that Lendlease cannot point to an individual term in the SSA the proper construction of which would resolve matters in its favour. Rather, Lendlease’s argument will depend upon various provisions in the SSA from which it will be contended that any right of set-off has been excluded.
As Mr Stoljar SC, who appeared with Mr Hewitt for Acciona submitted, this leaves open the possibility that the Court will also be invited to have regard to the genesis of the transaction and, possibly, mutually known surrounding circumstances. It would not be appropriate to consider those matters in advance of the final hearing.
In any event, there is a real possibility of the proposed separate determination not finally resolving matters. That is because, although Mr Williams’ instructions were that Lendlease would undertake not to seek to challenge on appeal an adverse decision of the proposed separate question until the conclusion of the proceedings, understandably, no such undertaking was forthcoming from Acciona.
And whether or not Acciona sought to challenge an adverse result to it of the proposed separate question prior to the conclusion of the proceedings, it would be open to Acciona to seek a stay until the conclusion of the proceedings of any order made in favour of Lendlease in relation to the Second Deferred Payment following determination of the proposed separate question.
Further, a favourable decision of the proposed separate question to Lendlease would not resolve the entirety of the proceedings in Lendlease’s favour as it would, in any event, agitate its claim for the $11 million to which I referred.
For these reasons, I do not see this as a matter where it is appropriate to order the determination of a separate question.
I order that Lendlease’s Amended Notice of Motion of 26 November 2021 be dismissed with costs.

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The case of Lendlease Corporation Ltd versus Acciona Infrastructure Asia Pacific Pty Ltd was heard in the Federal Court of Australia. The primary dispute between the parties centred on the interpretation and construction of an operative agreement between them. Lendlease Corporation, the plaintiff, sought a determination of certain clauses within the agreement, contending that Acciona Infrastructure had breached these terms. Acciona Infrastructure, the defendant, disputed these claims and argued that the clauses in question were ambiguous and should be construed in their favour.

The court was tasked with resolving several legal issues, primarily concerning the proper interpretation of the agreement and whether the court should separately determine the question of the agreement's construction. Additionally, the court had to consider whether it was appropriate to make an order for the separate determination of these construction questions. This included assessing the implications of such an order on the overall proceedings and the potential impact on the efficiency and fairness of the litigation process.

In its reasoning, the court examined the principles surrounding the separate determination of questions in civil proceedings. The court noted that such an order could be appropriate if it would facilitate the resolution of the case, particularly where complex issues of construction are involved. However, the court also considered the potential for such an order to fragment the proceedings and lead to unnecessary duplication of efforts. Ultimately, the court determined that making an order for the separate determination of the construction questions was appropriate in this case. This was based on the complexity of the issues and the potential benefits to the efficiency of the litigation process. The court concluded that such an order would allow for a more focused and streamlined approach to the resolution of the substantive issues between the parties.

The court issued an order for the separate determination of the questions of construction of the operative agreement. This order was intended to expedite the resolution of the underlying dispute by addressing the complex issues of interpretation upfront. The court's decision was aimed at ensuring that the litigation process was both efficient and fair, facilitating a clearer path to final judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Lendlease Corporation Ltd v Acciona Infrastructure Asia Pacific Pty Ltd [2021] NSWSC 1546
Hearing dates:	26 November 2021
Date of orders:	30 November 2021
Decision date:	30 November 2021
Jurisdiction:	Equity - Commercial List
Before:	Stevenson J
Decision:	Application for separate determination of a question of contractual construction refused
Catchwords:	CIVIL PROCEDURE – Separate determination of questions – where appropriate – whether an order should be made for the separate determination of a question of construction of the operative agreement
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural rulings
Parties:	Lendlease Corporation Limited (Plaintiff/Cross-Defendant) Acciona Infrastructure Asia Pacific Pty Ltd (First Defendant/Cross-Claimant) Corporacion Acciona Infraestructuras, S.L. B-87324455 (Second Defendant/Cross-Claimant)
Representation:	Counsel: J Williams SC with T O’Brien (Plaintiff/Cross-Defendant) J Stoljar SC with J Hewitt (Defendants/Cross-Claimants) Solicitors: Herbert Smith Freehills (Plaintiff/Cross-Defendant) Clayton Utz Hewitt (Defendants/Cross-Claimants)
File Number(s):	2021/219818