| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
TECHNOLOGY, ENGINEERING AND CONSTRUCTION LIST
No. S CI 2011 352
| SMEC AUSTRALIA PTY LTD (ABN 47 065 475 149) | First Plaintiff |
| and | |
| HATCH ASSOCIATES PTY LTD (ABN 59 008 630 500) | Second Plaintiff |
| v | |
| McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD & OTHERS (according to the attached schedule of parties) (ACN 002 929 017) | Defendants |
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JUDGE: | VICKERY J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 MAY 2011 | |
DATE OF JUDGMENT: | 20 MAY 2011 | |
CASE MAY BE CITED AS: | SMEC Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 213 | |
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CROSS-VESTING ACT AND PROCEDURE – Application to transfer proceeding to Supreme Court of South Australia – Interests of justice - Relevant Cross-vesting Acts – Application dismissed and transfer not ordered - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) – Section 5(2)(b)(iii).
COURTS - Application to transfer proceeding to Supreme Court of South Australia – Interests of justice - Relevant Cross-vesting Acts – Application dismissed and transfer not ordered - Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) – Section 5(2)(b)(iii).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr G.J. Digby QC and Mr D. McAndrew | Baker & McKenzie |
| For the First and Second Defendants | Mr J. Rowland QC and Mr N. Hopkins | Clayton Utz |
| For the Third Defendant | Mr M. Whitten | Thomson Lawyers |
HIS HONOUR:
Background
The dispute which is the subject of this proceeding arises from the construction of the Adelaide Desalination Plant, which is situated near Adelaide, South Australia (the “Project”). The Project is continuing. However, it was agreed by the relevant parties to be due for Practical Completion in February 2012. The Project is located in Port Stanvac in South Australia, 25 kilometres southwest of Adelaide.
The First Defendant (“McConnell Dowell”) and the Second Defendant (“Abigroup”) (together called the “Applicants” or “MAJV”), by their summons dated 4 March 2011, made an application to transfer this proceeding to the Supreme Court of South Australia pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“Cross-vesting Act”).
The Plaintiffs (“SMEC” and “Hatch” respectively), which together operate under a joint venture on the Project called the Design Joint Venture (“DJV”), opposed this course.
The Third Defendant (“Acciona Agua”) neither consented nor opposed the application.
The principal of the Project is the South Australian Water Corporation (“SA Water”). SA Water is a South Australian State Government instrumentality established by the Government of South Australia pursuant to the South Australian Water Corporation Act 1994 (SA) (“SA Water Act”) as a "business enterprise with the principal responsibility of providing water and sewerage services for the benefit of the people and economy of the State".[1]
[1]Sections 3 and 7 of the SA Water Act.
McConnell Dowell and Abigroup are members of an unincorporated joint venture (“MAJV”) which was formed for the purpose of carrying out certain works on the Project.
The MAJV and a company…
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- Case
- [2011] VSC 213
- Decision Date
CaseChat Overview and Summary
The court meticulously examined the criteria outlined in Section 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic), focusing on whether the transfer would be in the interests of justice. It considered various factors including the nature and complexity of the case, the location of relevant witnesses and documents, and the convenience of the parties. The court determined that, while the case involved substantial contractual claims and potentially significant financial implications, the factors did not sufficiently support a transfer to the Supreme Court of South Australia. It was held that the interests of justice were adequately served by maintaining the proceeding in the County Court of Victoria, where the case had already commenced and where the majority of relevant evidence and witnesses were located.
As a result, the application to transfer the proceeding was dismissed, and no transfer was ordered. The County Court retained jurisdiction over the matter, allowing the case to proceed as originally commenced. The final orders of the court reflected this decision, ensuring that the proceedings would continue in the County Court of Victoria without the need for a transfer to another jurisdiction.
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