RCR O'Donnell Griffin Pty Ltd v Forge Group Power Pty Ltd

[2016] QCA 179

[2016] QCA 179

COURT OF APPEAL

MORRISON JA
PHILIP McMURDO JA
APPLEGARTH J

Appeal No 9125 of 2015
SC No 5173 of 2014

RCR O’DONNELL GRIFFIN PTY LTD  Appellant
ACN 003 905 093

v

FORGE GROUP POWER PTY LTD  First Respondent
ACN 103 678 324

MARK FRANCIS XAVIER MENTHA  Second Respondent

SCOTT DAVID HARRY LANGDON  Third Respondent

BRISBANE

FRIDAY, 24 JUNE 2016

PHILIP McMURDO JA:  This appeal was heard on 10 May 2016 by Justices Morrison and Applegarth and me.  The appeal involved the entitlement of the respondents to make demand for payment under two bank guarantees.  The respondents are presently restrained from doing so by their own undertaking, which is in terms which would expire on 10 July 2016.  Because of that circumstance of urgency, the orders disposing of this appeal will be made now for reasons which will be published on a later date.

The orders are:

1.Allow the appeal.

2.Set aside the orders made on 17 August 2015.

3.Each of the questions referred to in paragraph 1 of the application filed 8 October 2014, and ordered to be determined as separate questions by the order of 13 October 2014, be answered in the negative.

4.Declare that from and after 22 April 2014, the first respondent has not been and is not entitled to call upon or seek to have recourse to the 2014 Guarantee or the 2016 Guarantee, as those instruments are identified in the statement of claim and either in their original terms or as amended from time to time.

5.Remit the balance of the claim to the Trial Division.

6.The respondents to pay the appellant’s costs of the proceeding to date in the Trial Division and of this appeal.