Monadelphous Engineering Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd

[2014] QCA 330

SUPREME COURT OF QUEENSLAND

CITATION:

Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330

PARTIES:

MONADELPHOUS ENGINEERING PTY LTD
ABN 76 609 605 632
MUHIBBAH CONSTRUCTIONS PTY LTD
ABN 76 609 605 632
(appellants)
v
WIGGINS ISLAND COAL EXPORT TERMINAL PTY LTD
ABN 20 131 210 038
(respondent)

FILE NO/S:

Appeal No 10120 of 2014
SC No 9585 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 December 2014

DELIVERED AT:

Brisbane

HEARING DATE:

24 November 2014

JUDGES:

Muir, Fraser and Morrison JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – SERIOUS QUESTION TO BE TRIED – GENERALLY – where the appellants (“MMM”) entered into two contracts with the respondent (“WICET”) to supply, install and construct works forming part of a coal export terminal – where MMM supplied to WICET bank guarantees to secure performance of MMM’s obligations under the two contracts – where WICET sought to call upon those guarantees – where the primary judge, finding there were not serious questions to be tried, refused an application by MMM for an interlocutory injunction to restrain WICET from calling upon those guarantees – where MMM argues there was a serious question whether s 67J of the Queensland Building and Construction Commission Act (“the Act”) precluded WICET from having any recourse to the guarantees because each contract was a “building contract” – where it was agreed that if each contract was a “building contract” the Act’s notice requirements would apply and WICET had not complied with those requirements – where this Court determined a “building contract” is a contract that involves any “building work” – whether there was a serious question to be tried that each contract involved “building work” as defined in Sch 2 of the Act and under regulations

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – TO GIVE OPERATION AND EFFECT TO ACT – where MMM argues s 67J of the Act precludes WICET from having recourse to the guarantees because each contract was a “building contract” as defined in s 67AAA(1) – where parts of s 67AAA(1) are not reconcilable and are ambiguous – whether the term “building contract” under s 67AAA(1) refers to a contract requiring the carrying out of any “building work”

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – RELEVANT CONSIDERATIONS – GENERALLY – where the primary judge refused MMM’s application for an interlocutory injunction, finding in any event the balance of convenience dictated that damages were an adequate remedy – where MMM gave evidence that demands on its bank guarantees would damage its reputation and ability to obtain future work – where this Court determined that there was a serious question to be tried with respect to only one of the two contracts and so WICET will have…