Negri Pty Ltd v Technip Oceania Pty Ltd - [2009] VSC 543

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
TECHNOLOGY ENGINEERING AND CONSTRUCTION LIST

No. 8281 of 2009

E.A. NEGRI PTY LTD (ACN 006 251 127)	Plaintiff
And
TECHNIP OCEANIA PTY LTD (ACN 062 878 719)	Defendant
AND BETWEEN:
TECHNIP OCEANIA PTY LTD (ACN 062 878 719)	Plaintiff by Counterclaim
And
E.A. NEGRI PTY LTD (ACN 006 251 127)	First Defendant by Counterclaim
And
AIBEL PTY LTD (ACN 106 317 793)	Second Defendant by Counterclaim

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	27 OCTOBER and 27 NOVEMBER 2009
DATE OF JUDGMENT:	30 NOVEMBER 2009
CASE MAY BE CITED AS:	NEGRI PTY LTD v TECHNIP OCEANIA PTY LTD
MEDIUM NEUTRAL CITATION:	[2009] VSC 543

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Practice and Procedure – Technology, Engineering and Construction List – Application for stay and summary judgment on counterclaim by plaintiff – Rule 23.01 Supreme Court (General Civil Procedure) Rules2005 – Stay and judgment refused - Preliminary question – Question of law – Utility of the preliminary question procedure under r. 47.04 – Whether preliminary question should be determined at an early stage in the proceeding - Whether trial of counterclaim should be split from trial of the claim – Whether part of the proceeding should be referred to a Special Referee to decide pursuant to Rule 50.01(1)(a)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G H Golvan QC and Mr J Shaw	Tisher Liner & Co
For the Defendant and Plaintiff by Counterclaim	Mr P W Almond QC and Ms P Neskovcin	Clayton Utz
For the Second Defendant by Counterclaim	Dr A P Trichardt	HWL Ebsworth Lawyers

HIS HONOUR:

Background

The Woodside Otway Gas Plant Project (the “Project”) is a large engineering project involving the development of a gas plant at Port Campbell in Victoria.

The principal in the Project was Woodside Energy Ltd (“Woodside”).

The defendant on the proceeding, Technip Oceania Pty Ltd (“Technip”) was the main contractor engaged by Woodside to undertake the Project.

The second defendant by counterclaim, Aibel Pty Ltd, which was formerly known as Vetco Aibel Australia Pty Ltd (“Vetco”), was engaged by Technip as the general works sub-contractor on the Project.

The plaintiff E.A. Negri Pty Ltd (“Negri”) is a civil works and plant hire contractor.

The case pleaded by the plaintiff Negri against the defendant Technip in its amended statement of claim dated 26 October 2008 is a relatively simple claim. Essentially it is this:

(a) By an agreement in writing made 15 November 2004 Vetco engaged Negri to carry out civil works on the Project in the nature of earthworks and roadworks (the “C1 Contract”). Negri carried out these works, which were substantially completed by May 2005.

(b) By a further agreement in writing made 12 January 2005 Vetco engaged Negri to carry out further civil works on the Project in the nature of concrete works (the “C2 Contract”). Negri carried out these works, which were substantially completed by October 2005.

(c) By a further agreement, which was…

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: [2009] VSC 543
Decision Date: 30 NOVEMBER 2009

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Negri Pty Ltd, the plaintiff, filed a claim against Technip Oceania Pty Ltd, the defendant, seeking relief related to a construction project. The defendant, in response, lodged a counterclaim against the plaintiff. The plaintiff subsequently sought a stay and summary judgment on the counterclaim, invoking Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005. The court was tasked with determining whether the stay and summary judgment should be granted and whether a preliminary question of law should be decided at an early stage of the proceedings. Additionally, the court had to consider whether the trial of the counterclaim should be separated from the main claim and whether a portion of the proceeding should be referred to a Special Referee.

The court examined the utility of the preliminary question procedure under Rule 47.04 and assessed whether it should be applied at an early stage. The primary concern was whether the preliminary question should be resolved before the substantive issues were addressed. The court also evaluated whether it was appropriate to bifurcate the trial of the counterclaim from the main claim and whether referring part of the proceeding to a Special Referee would expedite the resolution of the dispute. The court's decision hinged on the balance between the efficiency of the proceedings and the fairness to both parties.

After considering the arguments presented by both parties, the court concluded that the preliminary question should not be decided at an early stage. It found that such a decision would not expedite the resolution of the dispute and could potentially prejudice the outcome. The court also determined that the trial of the counterclaim should not be separated from the main claim, as it believed that both claims were interconnected and should be resolved together to avoid inconsistency in the findings. Furthermore, the court declined to refer any part of the proceeding to a Special Referee, holding that this would not serve the interests of expeditious and fair resolution of the case.

The court ultimately refused the plaintiff's application for a stay and summary judgment on the counterclaim. No preliminary question was decided, and the counterclaim was to proceed with the main claim. The court's decision was aimed at ensuring that the proceedings were conducted in a manner that was both efficient and fair to all parties involved.

Orders