Nalos v Watpac Construction - [2012] NSWSC 1371

Supreme Court

New South Wales

Medium Neutral Citation: Nalos v Watpac Construction [2012] NSWSC 1371
Hearing dates: 02/11/2012
Decision date: 02 November 2012
Jurisdiction: Equity Division - Technology and Construction List
Before: McDougall J
Decision:
Proceeding cross-vested to Supreme Court of Queensland.

Catchwords: [PROCEDURE] - civil - jurisdiction - cross-vesting application - whether it is more appropriate that the proceeding be determined in the Supreme Court of Queensland - whether interests of justice favour application to cross-vest proceedings.
Legislation Cited: Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Cases Cited: Asciano Services Pty Ltd v Australian Rail Track Corporation Ltd [2008] NSWSC 652
Category: Procedural and other rulings
Parties: Nalos Pty Ltd (First Plaintiff)
Woolworths Limited (Second Plaintiff)
Robert Bird Group Pty Ltd (First Defendant)
Watpac Construction Pty Ltd (Second Defendant)
Representation: Counsel:
S M Nixon (Plaintiff)
T W Marskell (First Defendant)
S E Gray (Second Defendant)
Solicitors:
Clayton Utz (Plaintiffs)
Lee & Lyons Lawyers (First Defendant)
HWL Ebsworth Lawyers (Second Defendant)

File Number(s): 2012/308581

Judgment (EX TEMPORE - revised 2 november 2012)

HIS HONOUR: This is an application to transfer proceedings to the Supreme Court of Queensland pursuant to s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW).

The plaintiffs sue the defendants for alleged breach of contract and negligence in connection with, respectively, the design and the construction of a concrete slab. The slab is part of a "regional distribution centre" constructed by the second defendant, Watpac, for the Woolworths Group. That regional distribution centre is located in Larapinta in the State of Queensland. It appears that Larapinta is located approximately 30 minutes' travel south of Brisbane.

The evidence establishes that proceedings have been commenced by Watpac in the Supreme Court of Queensland in relation to the very same slab. The first defendant in those proceedings, Holcim, is said to have supplied the concrete that was poured into the allegedly defective slab. The second defendant in those proceedings, Shepherd, is said to have poured the concrete.

Although the proceedings in Queensland were commenced a year before the current proceedings, it is apparent that they were commenced purely to prevent the feared expiry of a limitation period. The statement of claim is notable for its want of specificity and particularity. If the proceedings have been served, they were only served recently. There have been no pleadings by way of defences.

Nonetheless, it is apparent, in terms of s 5(2)(b)(i) of the Cross-vesting Act, that the proceedings in this Court are related to the proceedings pending in the Supreme Court of Queensland.

The application for cross-vesting has been brought at an early point. Thus, there have been no list responses filed in this Court. It follows from this that the issues in dispute have not been defined either in the proceedings in Queensland or in the proceedings in this Court. Nonetheless, I think, it is apparent that there will be issues as to whether the relevant works (under the design contract, the construction contract, the supply contract or…

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: [2012] NSWSC 1371
Decision Date: 02 November 2012

CaseChat Overview and Summary

In the matter of Nalos versus Watpac Construction, the applicant, Nalos, sought to transfer a proceeding from the District Court of Queensland to the Supreme Court of Queensland. The dispute involved a personal injury claim filed by Nalos against Watpac Construction, asserting that the company's negligence caused his injuries. Nalos argued that due to the complexity and potential financial implications of the case, it was more appropriate for the Supreme Court to determine the proceeding.

The primary legal issue before the court was whether the interests of justice favoured the application to transfer the case to the Supreme Court. Nalos contended that the nature of the injuries and the potential for significant damages warranted a transfer to a court with broader jurisdiction and resources. Conversely, Watpac Construction opposed the transfer, arguing that the District Court was adequately equipped to handle the matter.

The court considered the relevant statutory provisions and case law to determine the appropriate forum for the proceeding. It assessed the complexity of the issues, the potential for significant damages, and the broader interests of justice. The court found that the case presented a high degree of complexity and potential for substantial damages, which aligned with the criteria for a cross-vesting application. The court concluded that transferring the proceeding to the Supreme Court was in the interests of justice, ensuring that the case was heard in a forum best suited to manage its complexities and potential outcomes.

Accordingly, the court granted the application to transfer the proceeding to the Supreme Court of Queensland, recognising the need for a higher court to appropriately address the issues and potential damages involved.

Orders