RCR Resolve FM v Serco Australia - [2014] NSWSC 1477

Supreme Court

New South Wales

Medium Neutral Citation: RCR Resolve FM v Serco Australia [2014] NSWSC 1477
Hearing dates: 24/10/2014
Decision date: 24 October 2014
Jurisdiction: Equity Division - Commercial List
Before: McDougall J
Decision:
Order that proceedings be transferred from the District Court to the Supreme Court and heard together with these proceedings.

Catchwords: PROCEDURE - application seeking transfer of District Court Proceedings to Supreme Court - where two sets of proceedings in different courts - where two sets of proceedings deal with same factual and legal issue - where separate proceedings would mean that the same issue would be determined by different judges in different courts - whether transfer of proceedings is likely to delay hearing
PROCEDURE - application for consolidation of proceedings - where District Court proceedings on same factual issues transferred to Supreme Court - whether any benefit to reconstituting two sets of proceedings and repleading claims - whether sufficient to hear cases together with evidence in one to be evidence in both
PROCEDURE - costs - whether costs should follow the event - where respondent took the risk as to costs in opposing the motion - where warning given that costs would be sought if motion was opposed
Cases Cited: A Goninan & Co v Atlas Steels [2003] NSWSC 956
Category: Procedural and other rulings
Parties: RCR Resolve FM Pty Ltd (Plaintiff)
Serco Australia Pty Limited (Defendant)
Representation: Counsel:
TJ Breakspear (Plaintiff)
A d'Arville (Defendant)
R C Gration (Respondent)
Solicitors:
Allen & Overy (Plaintiff)
Baker & McKenzie (Defendant)

File Number(s): 2014/229168
Decision under appeal

File Number(s):

2014/229168

Judgment (ex tempore - revised 24 october 2014)

HIS HONOUR: The plaintiff (Resolve) provided maintenance services for the defendant (Serco) at what are euphemistically known as "immigration facilities" around Australia. One of those facilities was the Villawood Immigration Detention Centre (Villawood). In respect of Villawood, Resolve subcontracted its maintenance obligations, or some of them (the full scope of work under the subcontract is a matter of dispute) to a company known as Broadlex Services Pty Ltd (Broadlex).

In this Court, Resolve sues Serco to recover what it says are amounts owing under the contract between them. One of those claims relates to additional services that Resolve said it supplied, because the "assets" at the various "facilities" where it provided services exceeded the number for which, on the proper construction of their contract, it was required to deal with. The amount claimed for that is, in round figures, $6.3 million.

In addition, Resolve says that it has issued some $1.4 million (again in round figures) of invoices that are due and payable but that have not been paid.

By way of defence to that claim, Serco raises a number of issues. One of those issues is that it claims to be entitled to "abate" amounts that otherwise may be owing to Resolve because its head contractor, the Commonwealth of Australia, has "abated" amounts owing to Serco. That is said to have happened because, between March and September 2012, Serco,…

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] NSWSC 1477
Decision Date: 24 October 2014

CaseChat Overview and Summary

The case of RCR Resolve FM v Serco Australia involves two sets of proceedings that were filed in different courts, the District Court and the Supreme Court, concerning the same factual and legal issues. The applicants, RCR Resolve FM, sought to transfer the District Court proceedings to the Supreme Court to avoid the potential for conflicting decisions. The respondents, Serco Australia, opposed the application on the grounds that it might cause a delay in the hearing and that there would be no significant benefit in consolidating the proceedings.

The court was required to determine whether transferring the District Court proceedings to the Supreme Court would likely cause a delay in the hearing and if there was any benefit in consolidating the two sets of proceedings. The court considered the nature of the issues, the extent of the evidence, and the potential for inconsistency in the outcomes if the cases were heard separately.

In its reasoning, the court found that transferring the proceedings to the Supreme Court would not cause a delay in the hearing and that there was a benefit in consolidating the proceedings to avoid potential inconsistencies. The court held that the same evidence would be presented in both proceedings and that consolidating them would ensure that the same issues were determined by the same judge. The court also noted that the respondent had taken the risk as to costs in opposing the motion and that the warning given that costs would be sought if the motion was opposed should be taken into account.

The court ordered that the District Court proceedings be transferred to the Supreme Court and consolidated with the existing Supreme Court proceedings. The court also ordered that the costs of the application be paid by the respondent, Serco Australia.

Orders