Metier3 Pty Ltd v Enwerd Pty Ltd (No 2) - [2014] VSC 138

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
TECHNOLOGY, ENGINEERING AND CONSTRUCTION

No. 06058 of 2013

METIER3 PTY LTD (ABN 31 499 541 615)	Plaintiff
v
ENWERD PTY LTD	First Defendant
and
S.H.L NOMINEES (1965) PTY LTD	Second Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 MARCH 2014
DATE OF JUDGMENT:	26 MARCH 2014
CASE MAY BE CITED AS:	METIER3 PTY LTD v ENWERD PTY LTD & ANOR (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 138

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PRACTICE AND PROCEDURE – Supreme Court (General Civil Procedure) Rules 2005 - Rule 45.05 - Application for summary judgment – Court’s discretion to make orders pursuant to Rule 45.05(8) - Proceeding commenced by originating motion – No pleadings - Summary judgment sought in circumstances where there are substantial issues in dispute – Full hearing on merits appropriate – Defendants entitled to a defence and counterclaim – Application for summary judgment dismissed - Pleadings ordered.

BUILDING CONTRACTS – Entitlement to final payment following issue of certificate of Practical Completion - Validity of certificate of Practical Completion issued under Deed of Settlement - Whether it is open to defendants to challenge validity – Doctrine of election or waiver – Challenge to validity not raised before expiration of 12-month defects period under Deed of Settlement – Obligations under Deed of Settlement – Whether Plaintiff has complied with obligations.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Golvan QC	Carrick Gill Smyth
For the Defendants	Mr M Whitten of Counsel	Arnold Bloch Liebler

HIS HONOUR:

The Plaintiff, Metier3 Pty Ltd, by originating motion and summons on originating motion seeks relief in the form of declarations intended to substantiate its entitlement to relief and final judgment against the Defendants in the amount of $300,000 plus GST.

At a directions hearing conducted on Friday, 21 February 2014, I directed pursuant to the case management provisions of the Civil Procedure Act 2010 (Vic), that a preliminary trial of a contract construction issue be conducted on 26 February 2014, pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2006 (‘the Rules’).

On 26 February 2014, this proceeding was listed for preliminary determination of the following question pursuant to Rule 47.04:

Subject to clause 2E of the Deed of Settlement, whether the relevant provisions of the Deed give rise to an entitlement for the Plaintiff to be paid the final instalment of $300,000 plus GST upon the issue of a certificate of practical completion by the Superintendent.

I held in Metier 3 Pty Ltd v. Enwerd Pty Ltd & SHL Nominees1965 Pty Ltd[1] that the construction of clause 2E means that the entitlement of the Plaintiff to payment of the last instalment under the Deed of Settlement arises where a certificate of practical completion, duly issued in accordance with the terms of the Deed of Settlement, has been issued by the Superintendent.
[1][2014] VSC 80.

At paragraphs [50]-[51] of that decision, I noted the…

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] VSC 138
Decision Date: 26 MARCH 2014

CaseChat Overview and Summary

Metier3 Pty Ltd commenced proceedings against Enwerd Pty Ltd in the Supreme Court seeking summary judgment on claims related to the final payment following the issue of a certificate of Practical Completion. Enwerd Pty Ltd opposed the application and sought to defend the claims and counterclaim. The central issues before the court were whether the certificate of Practical Completion was valid, and if it was open to the defendants to challenge its validity, and whether the plaintiff had complied with its obligations under the Deed of Settlement.

The court considered the procedural aspect first, holding that the application for summary judgment was inappropriate given the substantial issues in dispute. The court emphasised that the defendants were entitled to a defence and to raise a counterclaim. The court also noted that the defendants had not raised a challenge to the validity of the certificate of Practical Completion before the expiration of the 12-month defects period under the Deed of Settlement, potentially invoking the doctrine of election or waiver. The court found that a full hearing on the merits was necessary to resolve these complex issues. Consequently, the application for summary judgment was dismissed, and the defendants were ordered to file their defence and any counterclaim within a specified time.

Given the dismissal of the summary judgment application, the court ordered that the defendants file their defence and any counterclaim within 28 days of the judgment. The case was set down for a case management conference to further determine the proceedings' progress and any additional directions necessary.

Orders