Rey (Plus) Projects Pty Ltd v Suncorp-Metway Limited

[2021] NSWSC 942

Supreme Court

New South Wales

Medium Neutral Citation:

Rey (Plus) Projects Pty Ltd v Suncorp-Metway Limited [2021] NSWSC 942

Hearing dates:

On the papers

Date of orders:

23 July 2021

Decision date:

30 July 2021

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

Application to consolidate proceedings refused

Catchwords:

PRACTICE AND PROCEDURE – whether these proceedings should be consolidated with other proceedings also involving the plaintiff – whether the two proceedings involved common questions

Legislation Cited:

Building and Construction Industry Security of Payment Act 1999 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Consequential orders

Parties:

Rey (Plus) Projects Pty Ltd (Plaintiff/First Respondent)
Suncorp - Metway Limited (Defendant/Cross-Claimant/Second Respondent)
Kurvest Pty Ltd (Cross-Defendant/Applicant)

Representation:

Counsel:
B Ilkovski (Plaintiff/First Respondent)
I J M Ahmed (Defendant/Cross-Claimant/Second Respondent)
D K Smith (Cross-Defendant/Applicant)

Solicitors:
Vincent Young (Plaintiff/First Respondent)
King & Wood Mallesons (Defendant/Cross-Claimant/Second Respondent)
Roberts & Partners Lawyers (Cross-Defendant/Applicant)

File Number(s):

2020/322865

Judgment

1. In these proceedings the plaintiff, Rey (Plus) Projects Pty Ltd, seeks to enforce a performance guarantee issued by the defendant, Suncorp-Metway Ltd.

2. The guarantee relates to the performance of Charisma Developments Pty Ltd, a contractor engaged by Rey Plus in relation to a residential development at Edmondson Park.

3. Suncorp defends the proceedings on a number of bases including that Rey Plus has allegedly previously asserted, in proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), that it was never provided with the bank guarantees it now seeks to enforce. Suncorp also alleges Rey Plus already obtained satisfaction for liabilities to which the guarantees are said to be referrable.

4. By cross-claim, Suncorp seeks indemnity for any liability it might have to Rey Plus under the bank guarantees from Suncorp’s customer, Kurvest Pty Ltd. Suncorp issued the bank guarantees at the request of Kurvest. Kurvest is a company related to Charisma Developments.

5. Charisma Developments is not a party to these proceedings.

6. However, on 8 June 2021, Charisma Developments commenced separate proceedings against Rey Plus and its director Mr Reynolds (the “Charisma Proceedings”).

7. In those proceedings, Charisma Developments makes various claims arising from the construction contract between Charisma Developments and Rey Plus, referred to above. Charisma Developments seeks declarations as to the date of practical completion under the contract, a declaration that it is not liable to pay any liquidated damages under the contract, an order that Rey Plus pays it some $300,000.00 as “monies owing under the contract” and, alternatively, damages.

8. In these proceedings, by Notice of Motion filed on 24 June 2021, Kurvest seeks an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 28.5 that these proceedings be heard together with the Charisma Proceedings and that evidence in each proceeding be evidence in the other.

9. Charisma Developments made a corresponding application in the Charisma Proceedings, also by Notice of Motion filed on 24 June 2021.

10. Both Suncorp, in these proceedings, and Rey Plus, in the Charisma Proceedings, oppose any order being made for consolidation of the proceedings.

11. As the parties were notified by email on 5 July 2021 by the Associate to Ball J, Charisma Development’s corresponding application had then been dismissed.

12. On 24 July 2021, by an email from my Associate, I informed the parties that I was not prepared to make the order sought in these proceedings by Kurvest. These are my reasons for that decision.

13. There are some common features between the two proceedings. There are a number of witnesses who will be called in both proceedings. And, in a very loose sense, both proceedings can be said to arise from events relating to the Edmondson Park development.

14. But Kurvest has not pointed to any “common question” which will arise in both proceedings.

15. That is not surprising as the focus of both proceedings is very different.

16. In these proceedings, the question will be whether Suncorp was able to establish a basis to resist the call made by Rey Plus on the guarantees and, if it cannot, whether there is any basis upon which Kurvest can resist Suncorp’s claim for indemnity under the documents recording their relationship.

17. On the other hand, in the Charisma Proceedings, wide questions concerning the building contract between Rey Plus and Charisma Developments and the general conduct of the Edmondson Park development will arise for consideration.

18. Additionally, these proceedings are further advanced than the Charisma Proceedings. The pleadings were closed on 28 June 2021 and directions were made for further service of evidence, concluding on 19 November 2021.

19. On the other hand, in the Charisma Proceedings, List Responses have not yet been filed.

20. It may be that once a List Response is served in the Charisma Proceedings the Court will be in a better position to ascertain whether there will be any common questions in the two proceedings such as to justify the orders sought by Kurvest.

21. I was not satisfied that such orders should be made now and for that reason have dismissed Kurvest’s application.

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Decision last updated: 30 July 2021