Santos Limited v BNP Paribas

SUPREME COURT OF QUEENSLAND

CITATION:

Santos Limited v BNP Paribas [2019] QCA 11

PARTIES:

SANTOS LIMITED
ABN 80 007 550 923
(appellant)
v
BNP PARIBAS
ABN 23 000 000 117
(respondent)

FILE NO/S:

Appeal No 6278 of 2018
SC No 11743 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2018] QSC 105 (Jackson J)

DELIVERED ON:

5 February 2019

DELIVERED AT:

Brisbane

HEARING DATE:

19 September 2018

JUDGES:

Holmes CJ and Fraser and Morrison JJA

ORDER:

The appeal is dismissed, with costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the appellant appeals against the primary judge’s dismissal of its application for summary judgment on its claim for payment of a sum said to be due and owing under a performance security given by the respondent – where the primary judge refused summary judgment for the appellant because he found that the appellant had no real prospect of succeeding on its claim and there was no need for a trial – whether the finding was correctly made

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – COMMERCIAL AND BUSINESS TRANSACTIONS – PARTICULAR TRANSACTIONS – BANKING AND FINANCE – INSTRUMENTS – MISCELLANEOUS – where the respondent issued to the appellant a “bank guarantee” in the nature of an unconditional bond to pay money on demand up to a stated maximum amount – where bond requires demand to be “purporting to be signed by an authorised representative” of plaintiff – where bond requires demand to be in form of letter annexed to demand which states under signature line “authorised signatory of Santos Limited” – where letter of demand stated above signature “Santos Limited – GLNG Upstream Project” and under signature a name and the title “General Manager Development” – where principle of strict compliance to be applied intelligently, not mechanically – whether demand was “purporting to be signed by an authorised representative” – whether demand complied with bond

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35, referenced
Santos Limited v BNP Paribas [2018] QSC 105, referenced
Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47, cited

COUNSEL:

B Walker SC, with C Schneider, for the appellant
P Braham SC, with J Hutton, for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the appellant
Deutsch Miller for the respondent

1. HOLMES CJ:  The appellant, Santos Limited, appeals against an order dismissing its application for summary judgment on a claim for payment of the amount of $55,000,000, said to be due and owing under a performance security given by the respondent, BNP Paribas.  The performance security, in the form of a bank guarantee, was issued to secure the performance of a contractor, Fluor Australia Pty Ltd, in providing engineering and design services to Santos Limited’s coal…