Siemens v Bulgana (No 2) - [2019] VSC 807

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL COURT

Not Restricted

S ECI 2019 4613

BETWEEN:

SIEMENS GAMESA RENEWABLE ENERGY PTY LTD (ACN 614 784 575)	Plaintiff
v
BWF WIND FARM PTY LTD (ACN 162 201 569) and NEOEN AUSTRALIA PTY LTD (ACN 160 905 706)	Defendants

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JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2019
DATE OF RULING:	6 December 2019
CASE MAY BE CITED AS:	Siemens v Bulgana (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 807

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PRACTICE AND PROCEDURE – Injunctive relief – Building and Engineering Contract – Application to restrain beneficiary of performance guarantee from calling on two unconditional bank guarantees – Continuation of injunction sought equivalent to stay of judgment pending appeal - Balance of convenience.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Van Proctor	Clayton Utz
For the Defendants	Mr D Batt QC with Mr J Gurr	White & Case

HIS HONOUR:

Following the outcome of underlying proceedings to restrain access to bank guarantees provided by the plaintiff Siemens Gamesa Renewable Energy Pty Ltd (SGRE) and pursuant to liberty to apply, SGRE seeks to extend the short interim injunction granted in this matter on 2 December 2019, restraining access to two unconditional bank guarantees dated 28 March 2019 (Performance Securities) provided by SGRE to the first defendant Bulgana Wind Farm Pty Ltd (BWF) under and in relation to the EPC Contract entered into between the parties on 16 March 2018.

The short interim injunction of 2 December 2019 was granted to preserve the then status quo of the parties’ earlier instigated agreed restraint in respect of access to the Performance Securities, and on the bases generally outlined in my reasons given on 28 November 2018 for granting that interim injunction. Those considerations included that by today, when the interim injunction expired, SGRE would be in a positon where it had commenced its foreshadowed application for leave to appeal in the Victorian Court of Appeal and SGRE would also have been in a position to clarify when, or about when, the Court of Appeal would fix SGRE’s application for hearing.

As matters have transpired, and as explained in the Affidavit of Xin Jack Fan affirmed 5 December 2019, SGRE has not yet effected the issue of its appeal in relation to Judgment in the underlying proceeding, and no clarity has yet been provided via enquiries of the Registry of the Court of Appeal, as to the date, or approximate date, on which the SGRE application for leave to appeal (or that application and the substantive appeal) is likely to be dealt with by the Court of Appeal.

In passing I note that in relation to these matters that BWF criticize SGRE for what is asserted to be a breach of paragraph [2] of the Orders of 2 December 2019 in this matter, and also as to what is asserted to be a breach of undertaking given by Counsel for SGRE on 28 November 2019, namely that SGRE would…

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.

Continue reading Siemens v Bulgana (No 2)

Details

AGLC: Siemens v Bulgana (No 2) [2019] VSC 807
Case: [2019] VSC 807
Decision Date: 6 December 2019

CaseChat Overview and Summary

Siemens AG and Siemens Pty Ltd brought an action against Bulgana Constructions Pty Ltd concerning the performance of a building contract. The dispute reached the Supreme Court of Victoria, where the primary focus was on an application to restrain Bulgana from calling on two unconditional bank guarantees provided by Siemens. The court was also asked to consider the continuation of an injunction, effectively seeking a stay of judgment pending an appeal.

The court had to determine whether to grant the application to restrain Bulgana from calling on the bank guarantees, and if so, under what conditions. Furthermore, the court was required to weigh the balance of convenience in deciding whether to continue the injunction that would stay the judgment pending appeal.

In examining the matter, the court considered the merits of the appeal, the likelihood of success, and the potential harm that could result if the injunction were not granted. The court concluded that the balance of convenience favoured granting the continuation of the injunction, effectively staying the judgment pending appeal. This decision was based on the potential detriment to Siemens if the bank guarantees were called upon, and the prospects of a successful appeal.

The court ordered the continuation of the injunction, effectively staying the judgment pending the outcome of the appeal. This decision aimed to protect Siemens from any immediate financial loss that might result from Bulgana calling on the bank guarantees, pending the resolution of the appeal.

Orders