Santos Ltd v Helix Energy Services Pty Ltd - [2009] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5219 of 2009

SANTOS LIMITED (ABN 80 007 550 923)	Plaintiff
v
HELIX ENERGY SERVICES PTY LTD (ABN 79 122 647 938)	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 June 2009
DATE OF JUDGMENT:	10 July 2009
CASE MAY BE CITED AS:	Santos Ltd v Helix Energy Services Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VSC 282

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Courts – proceedings commenced in Victoria and South Australia concerning the same subject matter – plaintiff seeks anti-suit injunction – defendant applies to transfer Victorian proceeding to South Australia – whether anti-suit injunction available or appropriate in cross-vesting environment – whether South Australian Court a more appropriate forum – whether anti-suit injunction should go.

Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) s 5

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G John Digby QC and Mr R Andrew	Freehills
For the Defendant	Mr Malcolm Blue QC and Mr Matthew Barrett	Thomson Playford Cutlers

HIS HONOUR:

The applications before the Court concern the forum for the conduct and resolution of the litigation between the plaintiff, Santos Limited, and the defendant, Helix Energy Services Pty Ltd. Santos wants it to be this Court; Helix prefers the Supreme Court of South Australia.

By contract dated 5 December 2007 the parties agreed that Helix would provide and install pipelines and electric hydraulic control umbilicals and provide certain other services for stage 2 of the VIC/P44 off-shore gas development in the Otway Basin southwest of Port Campbell in the State of Victoria.

By March 2009 the parties were in dispute and on 13 March Santos sent two letters to Helix. The first was a letter asserting that Helix, in very many respects, had so conducted itself that it had repudiated the contract. These respects are set out in the list of some 18 pages which is attached to the letter. Santos asserted that it was entitled to and did in fact accept this repudiation, so that the contract was terminated. In the second letter Santos alleged that Helix had committed material breaches of the contract and had regularly failed to meet contractual requirements so that Santos was entitled to terminate the contract forthwith pursuant to cl 1.11.1. Santos then stated in the letter that it exercised its right so that the contract was terminated. This letter, too, contains an 18 page list of acts and omissions of Helix which are said to warrant the contract termination. In the list enclosed in each of the letters Santos reserved the right to add to the listed items.

The contract provides in cl 1.24 for dispute resolution:

1.24 DISPUTE RESOLUTION
1.24.1 Commencement of Proceedings
A party shall not commence court proceedings relating to any dispute arising from the Contract except when that party seeks urgent relief from a court or when dispute resolution has failed under this clause 1.24. If a party fails to comply with clause 1.24, the other…

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 282
Decision Date: 10 July 2009

CaseChat Overview and Summary

The parties in this case were Santos Ltd and Helix Energy Services Pty Ltd. The dispute arose from a series of proceedings involving contract claims and counterclaims in both Victoria and South Australia. Santos Ltd sought an anti-suit injunction against Helix Energy Services Pty Ltd to restrain the latter from continuing with proceedings in Victoria. Helix Energy Services Pty Ltd, in response, applied to transfer the Victorian proceedings to South Australia. The matter was before the Supreme Court of Victoria.

The central legal issues for the court to decide were whether an anti-suit injunction was available and appropriate in a cross-vesting environment and whether the South Australian Court was a more appropriate forum for the proceedings. Additionally, the court had to consider whether an anti-suit injunction should be granted. The court considered the relevant provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) and the principles of comity and convenience in international litigation.

The court found that an anti-suit injunction was not available or appropriate in a cross-vesting environment. It reasoned that such an injunction would not be effective as the proceedings could still continue in the South Australian Court. The court also determined that the South Australian Court was a more appropriate forum because it was the original jurisdiction and the parties had already commenced proceedings there. Consequently, the court declined to grant the anti-suit injunction sought by Santos Ltd.

The final orders of the court were that the application for an anti-suit injunction by Santos Ltd was dismissed, and the application by Helix Energy Services Pty Ltd to transfer the proceedings to South Australia was allowed.

Orders