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Mainteck Services Pty Ltd v Stein Heurtey SA

Mainteck Services Pty Ltd v Stein Heurtey SA

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Case Copied 6 June 2014 77 min read

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Court of Appeal
Supreme Court

New South Wales

Case Name:	Mainteck Services Pty Ltd v Stein Heurtey SA
Medium Neutral Citation:	[2014] NSWCA 184
Hearing Date(s):	8, 9, 10, 11 April 2014
Decision Date:	6 June 2014
Before:	Ward JA at [1]; Emmett JA at [2]; Leeming JA at [14]
Decision:	1. Notice of motion filed 8 October 2013 dismissed. 2. Application for leave to amend notice of appeal to challenge variation directions 7 and 8 dismissed. 3. Appeal dismissed. 4. Direct the parties, within 14 days of today, to file a note of any orders which may be made by consent as to costs, failing which they are to file and serve short submissions not exceeding 5 pages as to the orders as to costs they propose and the reasons they should be made.
Catchwords:	APPEAL - application to amend notice of appeal - extension of time - significance of unexplained delay BUILDING AND ENGINEERING CONTRACTS - "turnkey" contract - descriptive label unhelpful in determining questions of construction - "global claim" for delay and disruption - applicable principles CONTRACTS - construction and interpretation - commercial contract - role of context and surrounding circumstances and purpose - role of "ambiguity" and "plain meaning" - significance of Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 88 ALJR 447 at [35] - relevance of grammatical errors - relevance of punctuation - incorporation by reference - contractual rectification PRACTICE AND PROCEDURE - reference - adoption of referees' report - discretionary decision of primary judge to adopt or reject report - applicable principles on appeal from - extent of obligation to give reasons
Legislation Cited:	Civil Liability Act 2002 (NSW), Part 1A Civil Procedure Act 2005 (NSW), ss 56, 57, 58 Insurance Contracts Act 1984 (Cth) Supreme Court Act 1970 (NSW) Trade Practices Act 1974 (Cth), s 87 Uniform Civil Procedure Rules 2005 (NSW), r 20.24 Wild Dog Destruction Regulation 1999, cl 7
Cases Cited:	Abigroup Contractors Pty Ltd v Sydney Catchment Authority [2004] NSWCA 270 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 AG Cullen Construction Inc v State System of Higher Education 898 A 2d 1145 (2006) Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49 AMCI Investments Pty Ltd v Rio Doce Australia Pty Ltd [2008] QCA 387 Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Associated Japanese Bank (International) Ltd v Crédit du Nord SA [1989] 1 WLR 255 B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 Bank of Queensland Ltd v Chartis Australia Insurance Ltd [2013] QCA 183 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2008] NSWCA 228 Byrnes v Kendle [2011] HCA 26; 243 CLR 253 Cable Ltd v Hutcherson Bros Pty Ltd (1969) 123 CLR 143

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: [2014] NSWCA 184
Decision Date: 6 June 2014

CaseChat Overview and Summary

Mainteck Services Pty Ltd (Mainteck) appealed to the New South Wales Court of Appeal against a decision of the primary judge concerning a dispute arising from a "turnkey" contract for the construction of a power station. The dispute involved a "global claim" for delay and disruption, and Mainteck sought to amend its notice of appeal to challenge specific variation directions issued by Stein Heurtey SA (Stein Heurtey).

The Court of Appeal was required to determine whether to grant Mainteck leave to amend its notice of appeal, considering the significant delay in making the application and the nature of the proposed amendments. Furthermore, the Court had to consider the principles governing the construction of commercial contracts, particularly in relation to the interpretation of a "turnkey" contract and the assessment of a "global claim" for delay and disruption, applying principles established in cases such as *Electricity Generation Corporation v Woodside Energy Ltd*. The Court also considered the discretionary power of a primary judge to adopt or reject a referee's report and the extent of the obligation to provide reasons for such decisions.

The Court dismissed Mainteck's application to amend its notice of appeal, finding that the unexplained delay was significant and that the proposed amendments lacked merit. In relation to the substantive appeal, the Court found that the primary judge had correctly interpreted the contract and applied the relevant legal principles in assessing the global claim. The Court affirmed the principles of contractual interpretation, emphasising the importance of context, surrounding circumstances, and the purpose of the contract, and noted that descriptive labels like "turnkey" were unhelpful in determining construction. The Court also confirmed that the primary judge's adoption of the referee's report was a proper exercise of discretion.

Consequently, the Court of Appeal dismissed the appeal and ordered that the notice of motion filed on 8 October 2013 be dismissed. The parties were directed to file a note of any consent orders as to costs within 14 days, or otherwise file submissions on proposed costs orders.

Orders

Orders of the court

1. Notice of motion filed 8 October 2013 dismissed.

2. Application for leave to amend notice of appeal to challenge variation directions 7 and 8 dismissed.

3. Appeal dismissed.

4. Direct the parties, within 14 days of today, to file a note of any orders which may be made by consent as to costs, failing which they are to file and serve short submissions not exceeding 5 pages as to the orders as to costs they propose and the reasons they should be made.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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