Tianqi Lithium Kwinana Pty Ltd v MSP Engineering Pty Ltd - [2020] WASCA 128

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   TIANQI LITHIUM KWINANA PTY LTD -v- MSP ENGINEERING PTY LTD [2020] WASCA 128
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   10 AUGUST 2020
DELIVERED          :   14 AUGUST 2020
FILE NO/S:   CACV 84 of 2020
BETWEEN:   TIANQI LITHIUM KWINANA PTY LTD
Appellant
AND
MSP ENGINEERING PTY LTD
Respondent

FILE NO/S: CACV 85 of 2020
BETWEEN: TIANQI LITHIUM KWINANA PTY LTD
Appellant
AND
MSP ENGINEERING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   MASTER SANDERSON
Citation: MSP ENGINEERING PTY LTD -v- TIANQI LITHIUM KWINANA PTY LTD [2020] WASC 251
File Number            :   CIV 1319 of 2020, CIV 1318 of 2020

Catchwords:

Practice and procedure - Disputes between principal and contractor under building contracts - Application by principal to stay primary court's orders pending appeal - Where primary court ordered contractor's summary judgment application to proceed - Where principal contended stay required because disputes subject to arbitration

Legislation:

Commercial Arbitration Act 2012 (WA), s 8

Result:

Stay applications dismissed

Category: B

Representation:

CACV 84 of 2020

Counsel:

Appellant	:	Mr G D Cobby SC
Respondent	:	Mr G R Donaldson SC

Solicitors:

Appellant	:	Clayton Utz
Respondent	:	Squire Patton Boggs

CACV 85 of 2020

Counsel:

Appellant	:	Mr G D Cobby SC
Respondent	:	Mr G R Donaldson SC

Solicitors:

Appellant	:	Clayton Utz
Respondent	:	Squire Patton Boggs

Case(s) referred to in decision(s):

Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215
Bayside Civil & Drainage Pty Ltd v Marinestar Holdings Pty Ltd [2000] WASC 17
Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49; (2001) 17 BCL 434
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304
GR Engineering Services Ltd v Eastern Goldfields Ltd [2018] WASC 19
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [No 3] [2013] VSC 435
Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388
MSP Engineering Pty Ltd v Tianqi Lithium Kwinana Pty Ltd [2020] WASC 251
Novawest Contracting Pty Ltd v Taras Nominees Pty Ltd [1998] VSC 205
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155

JUDGMENT OF THE COURT:

Introduction

These reasons deal with the appellant's applications filed 21 July 2020 for, in effect, a stay of the primary court's orders pending the determination of the appeals.
In the primary court, Master Sanderson heard, and dismissed, an application by the appellant (Tianqi) to stay proceedings commenced by the respondent (MSP) in relation to moneys allegedly owing by Tianqi to MSP pursuant to two (relatively identical) contracts, under which Tianqi engaged MSP to design and construct a lithium hydroxide processing plant in Kwinana. The two contracts have been referred to as 'LHPP1' and 'LHPP2'. MSP claims (and there is no dispute) that, under LHPP1, a payment of $26,969,407.88 has been certified by the Superintendent as due by Tianqi to MSP, and that, under LHPP2, a payment of $5,643,951.49 has been certified by the Superintendent as due by Tianqi to MSP. In each case the certification was made under cl 37 of the relevant contract.
Tianqi contends that the claims the subject of the primary proceedings are required to be dealt with by arbitration. Tianqi applied to stay the primary proceedings on that basis. Master Sanderson dismissed the stay application and made programming orders for a summary judgment application by MSP in relation to the claims. Master Sanderson published written reasons for his decision: MSP Engineering Pty Ltd v Tianqi Lithium Kwinana Pty Ltd[1] (primary decision).
[1] MSP Engineering Pty Ltd v Tianqi Lithium Kwinana Pty Ltd [2020] WASC 251.
By its applications filed 21 July 2020, Tianqi sought, relevantly, an order that:
1. [MSP's] application for summary judgment in these proceedings be stood over pending determination of [Tianqi's] appeal.
For the following reasons, the stay applications should be dismissed.

Background

The contract

The term 'WUC' is defined under the contract to mean 'the work which the Contractor is or may be required to carry out and complete under the Contract and includes the FEED Works, variations, remedial work, construction plant and temporary works'.
By cl 20, Tianqi is obliged (amongst other things) to ensure that at all times there is a Superintendent, and to use reasonable endeavours to ensure that the Superintendent fulfils all aspects of the independent certifying role and functions (a) honestly and fairly, (b) within the prescribed contractual time, and (c) by arriving at a reasonable measure or value of work, quantities or time.[2]
[2] Affidavit of R F van Erp sworn 30 March 2020, annexure RFVE‑1, page 62.
Clause 37 provides, relevantly:[3]
[3] Primary decision [2].
Payment
37.1 Progress claims
The Contractor shall claim payment progressively in accordance with Item 33.
An early progress claim shall be deemed to have been made on the date for making that claim.
If the time for any progress claim falls due on a day which is Saturday, Sunday, statutory or public holiday the Contractor shall submit the claim either on the day before or next following that date which itself is not a Saturday, Sunday, statutory or public holiday.
Each progress claim shall be given in writing to the Superintendent and shall include details of the following, calculated in accordance with Annexure Part J:
(i)the value of WUC carried out to the end of the previous month and the amount forecast in accordance with Annexure Part P together with all amounts then otherwise due to the Contractor arising out of or in connection with the Contract;
(ii)the total amount previously certified pursuant to this subclause 37.1;
(iii)the amount being claimed by the Contractor;
(iv)separately identify work attracting GST and work which does not attract GST; and
(v)a written report on the progress made in carrying out the Works during the preceding period since the last progress report in a form approved by the Principal and containing as much detail as the Principal reasonably requires.
37.2Certificates
The Superintendent shall, within 10 business days after receiving such a progress claim, issue to the Principal and the Contractor, assessed in accordance with Annexure Part J:
(a)a progress certificate identifying the progress claim to which it relates and evidencing the Superintendent's opinion of the moneys due from the Principal to the Contractor pursuant to the progress claim and reasons for any difference ('progress certificate'); and
(b)a certificate identifying the progress claim to which it relates and evidencing the Superintendent's assessment of retention moneys and moneys due from the Contractor to the Principal pursuant to the Contract.
If the Contractor does not make a progress claim in accordance with subclause 37.1, the Superintendent may issue the progress certificate with details of the calculations and shall issue the certificate in paragraph (b) of this subclause 37.2.
If the Superintendent does not issue the progress certificate within 10 business days of receiving a progress claim in accordance with subclause 37.1, that progress claim shall be deemed to be the relevant progress certificate.
The Principal shall on the first day of the following month after the Superintendent receives the progress claim, pay to the Contractor the balance of the progress certificate after setting off such of the certificate in paragraph (b) of this subclause 37.2 as the Principal elects to set off. If that setting off produces a negative balance, the Contractor shall pay that balance to the Principal within 7 days of receiving written notice thereof.
Neither a progress certificate nor a payment of moneys shall be evidence that the subject WUC has been carried out satisfactorily. Payment other than final payment shall be payment on account only.
At any time and from time to time, the Superintendent may by a further certificate correct any error which has been discovered in any previous certificate, other than a certificate of practical completion or final certificate.
No set off amount had been allowed pursuant to cl 37.2. There was no evidence the Superintendent was asked by Tianqi to allow a set off.[4]
[4] Primary decision [5].
Clause 39 deals with default or insolvency.[5] By cl 39.1, if a party breaches (including repudiates) the contract, nothing in cl 39 prejudices the right of the other party to recover damages or exercise any other right or remedy. By cl 39.2, if MSP commits a substantial breach of the contract, Tianqi may give MSP written notice to show cause. Clause 39.4 provides:
39.4Principal's rights
If the Contractor fails to show reasonable cause by the stated date and time, the Principal may by written notice to the Contractor:
(a)take out of the Contractor's hands the whole or part of the work remaining to be completed and suspend payment unless or until it becomes due and payable pursuant to subclause 39.6; or
(b)terminate the Contract.
[5] Affidavit of R F van Erp sworn 30 March 2020, annexure RFVE‑1, pages 81 - 86.
Clause 39.5 provides that Tianqi shall complete or procure completion of work taken out of MSP's hands.
Clause 39.6 provides:
39.6Adjustment on completion of work taken out
When work taken out of the Contractor's hands has been completed, the Superintendent shall assess the cost thereby incurred and shall certify as moneys due and payable accordingly the difference between that cost (showing the calculations therefor) and the amount which would otherwise have been paid to the Contractor if the work had been completed by the Contractor.
If the Contractor is indebted to the Principal, the Principal may retain construction plant or other things taken under subclause 39.5 until the debt is satisfied. If after reasonable notice, the Contractor fails to pay the debt, the Principal may sell the construction plant or other things and apply the proceeds to the satisfaction of the debt and the costs of sale. Any excess shall be paid to the Contractor.
By cl 39.7, if Tianqi commits a substantial breach, MSP may give Tianqi written notice to show cause. Substantial breaches include Tianqi's failure to make a payment due and payable pursuant to the contract. By cl 39.9, if Tianqi fails to show reasonable cause by the stated date and time, MSP may suspend the whole or any part of the works. MSP is to remove the suspension if Tianqi remedies the breach. MSP may, by written notice, terminate the contract if within 28 days of the date of suspension, Tianqi fails to remedy the breach or, if the breach is not capable of remedy, to make other arrangements to the reasonable satisfaction of MSP. Damages suffered by MSP by reason of a suspension shall be assessed by the Superintendent, who shall certify them as moneys due and payable to MSP.
Clause 39.10 deals with termination of the contract pursuant to cl 39.4(b) (by Tianqi) or by cl 39.9 (by MSP). The first paragraph of cl 39.10 provides:
39.10Termination
If the Contract is terminated pursuant to subclause 39.4(b) or 39.9, the parties' remedies, rights and liabilities shall be the same as they would have been under the law governing the Contract had the defaulting party repudiated the Contract and the other party elected to treat the Contract as at an end and recover damages.
Clause 39.10 also refers to situations where there is wrongful termination by Tianqi or lawful termination by MSP:
If the Contract is wrongfully terminated by the Principal or rightfully terminated by the Contractor under clause 39.9, the Contractor shall then be entitled to a claim for:
(i)WUC which will include all direct costs, indirect costs, EPCM costs and Fixed Margin incurred up to and including the date for termination minus any payments that have already been made;
(ii)demobilisation costs, cancellation fees and other reasonable expenses and/or costs applicable in complying with or as a consequence of the termination; and
(iii)pro‑rata of the Performance Margin being 4.5% of all direct costs, indirect costs and EPCM costs incurred up and including the date for termination.
Clause 39.10 then refers to a situation where Tianqi rightfully terminates the contract:
If the Principal rightfully terminates the contract pursuant to cl 39.4 prior to the date of Practical Completion, then the Principal shall not be required to pay the Performance Margin and the Contractor shall reimburse to the Principal amounts paid by the Principal for WUC that has not yet been performed but the Contractor shall be entitled to claim for:
(i)WUC which will include all directs costs, indirect costs, EPCM costs and Fixed Margin incurred up to and including the date for termination minus any payments that have already been made;
(ii)demobilisation costs, cancellation fees and other reasonable expenses and or costs applicable in complying with or as a consequence of the termination.
Clause 39.10 concludes:
A party may deduct from moneys due to the other party, any money due or which may become due from that other party under the Contract or otherwise.
Clause 42 of the contract deals with dispute resolution and provides, relevantly:[6]
[6] Primary decision [4].
Dispute resolution
42.1Notice of Dispute
If a difference or dispute (together called a 'dispute') between the parties arises in connection with the subject matter of the Contract, including a dispute concerning:
(a)a Superintendent's direction; or
(b)a claim:
(i)in tort;
(ii) under statute;
(iii)for restitution based or unjust enrichment or other quantum meruit; or
(iv)for rectification or frustration,
or like claim available under the law governing the Contract,
then either party shall, by hand or by registered post, give the other and the Superintendent a written notice of dispute adequately identifying and providing details of the dispute.
Notwithstanding the existence of a dispute, the parties shall, subject to clauses 39 and 40 and subclause 42.4, continue to perform the Contract.
42.2Conference
Within 14 days after receiving a notice of dispute, the parties shall confer at least once to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged.
If the dispute has not been resolved within 28 days of service of the notice of dispute, that dispute shall be and is hereby referred to arbitration.
42.3Arbitration
If within a further 14 days the parties have not agreed upon an arbitrator, the arbitrator shall be nominated by the person in Item 37(a). The arbitration shall be conducted in accordance with the rules in Item 37(b).
42.4Summary relief
Nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under the Contract or to seek injunctive or urgent declaratory relief.
The term 'claim' is inclusively defined by cl 1 of the contract to include any claim for payment of money under, or arising out of, or in any way connected with, the contract, including any direction of the Superintendent.

MSP's show cause notices and Tianqi's notices of dispute and the appointment of an arbitrator

On 26 February 2020, MSP issued show cause notices, with reference to cl 39.7 of the contract, in relation to the unpaid certified progress payments.[7]
[7] Affidavit of R F van Erp sworn 30 March 2020, annexures RFVE-13 and RFVE-14, pages 290 - 293.
On 4 March 2020, MSP commenced the primary proceedings, claiming payment of the outstanding certified amounts. Service of those proceedings on Tianqi was effected on 5 March 2020.
On 6 March 2020, Tianqi issued notices of dispute. The notices of dispute detailed the nature of claims made by Tianqi against MSP, including for misleading and deceptive conduct. The notice of dispute in relation to the LHPP1 contract outlined amounts claimed by Tianqi against MSP, but did not contend that Tianqi's claims gave rise to any equitable set off against MSP's claims for payment under the payment certificates.[8] The notice of dispute in relation to the LHPP2 contract included a claim for equitable set off.[9] Neither notice of dispute contended that Tianqi was entitled to set aside the contracts for misleading or deceptive conduct.
[8] Affidavit of R F van Erp sworn 30 March 2020, annexure RFVE‑15, pages 294 - 310.
[9] Affidavit of R F van Erp sworn 30 March 2020, annexure RFVE‑16, pages 311 - 313.
MSP accepted that the dispute resolution procedure under cl 42 of the contract had been activated by the notices of dispute. An arbitrator had been appointed to deal with the issues raised in the notices of dispute.[10]
[10] Primary decision [10].
Also on 6 March 2020, Tianqi issued responses to MSP's show cause notices. In essence, the responses contended that Tianqi was not in breach of its payment obligations as it had a right to set off amounts claimed in its notices of dispute against amounts owing to MSP under the contracts.[11]
[11] Affidavit of R F van Erp sworn 30 March 2020, annexures RFVE-17 and RFVE-18, pages 314 - 317.
On 9 March 2020, MSP gave notices suspending WUC pursuant to cl 39.9 of the contracts.

Tianqi's application for a stay

By chamber summons dated 30 March 2020, Tianqi sought orders for a stay of the primary proceedings and that the proceedings be referred to arbitration pursuant to s 8(1) of the Commercial Arbitration Act 2012 (WA) (the Arbitration Act). In the alternative, Tianqi sought a stay in the court's inherent jurisdiction.[12]

The parties' arguments in the primary proceedings

[12] Primary decision [1].

Tianqi contended that as the arbitration process had been initiated by the notices of dispute, the question of whether payment on the certificates ought to be made was a matter which ought to be referred to arbitration and the primary proceedings consequently stayed.[13] Tianqi relied on two cases dealing with similar dispute resolution clauses to support its submission:[14] Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd[15] and GR Engineering Services Ltd v Eastern Goldfields Ltd.[16]
[13] Primary decision [11].
[14] Primary decision [12].
[15] Eriez Magnetics Pty Ltd v Duro Felguera Australia Pty Ltd [2017] WASC 304.
[16] GR Engineering Services Ltd v Eastern Goldfields Ltd [2018] WASC 19.
Tianqi submitted that, although the amount certified might be payable, the eventual award might require a payment by MSP to Tianqi. In part, that submission relied upon the definition of 'claim' in cl 1 of the contract. Tianqi submitted that the definition was wide and all‑encompassing and picked up claims for payment said to be due on a certificate as well as other matters in dispute between the parties.[17]
[17] Primary decision [13].
Tianqi referred to s 8(1) of the Arbitration Act:[18]
A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
[18] Primary decision [14].

Tianqi submitted that s 8(1) of the Arbitration Act was in mandatory terms, and that as there was a 'matter' which was the subject of an arbitration agreement and as the agreement was not null and void, inoperative or incapable of being performed, the question of payment on the certificates had to be referred to arbitration.[19]
[19] Primary decision [15].
MSP alleged that cl 42.4 of the contracts provided a 'carve out' from arbitration proceedings which allowed enforcement of a payment 'due' under the contract. Therefore, payment on the certificate was due and MSP was entitled to prosecute the primary proceedings.[20]
[20] Primary decision [11], [16].
MSP further submitted that both Eriez Magnetics and GR Engineering were wrongly decided and the line of authority commencing with the Victorian Supreme Court decision in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[No 3][21] was the correct approach.[22]
[21] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [No 3] [2013] VSC 435.
[22] Primary decision [19].

The master's findings in the primary decision

The master said that Tianqi accepted that it was liable to make payments of the amount certified by the Superintendent.[23]
[23] Primary decision [13].
The master said that it was clear that the decision in Eriez Magnetics and the decision in GR Engineering Services squarely supported Tianqi's position.[24]
[24] Primary decision [19].
The master found that it was not possible to reconcile the decision in Lysaght Building Solutions with the decisions in Eriez Magnetics and GR Engineering. Therefore, the question was which line of authority he was to follow. The master said:[25]
In resolving that issue I am mindful there are two decisions of this court which support [Tianqi's] view against the submissions made by [MSP]. All of the relevant decisions are first instance decisions. I take as the starting point that I should only follow the [sic] Lysaght, if I am clearly of the view that Eriez and GR Engineering are wrongly decided.
[25] Primary decision [23].
The master was satisfied that he should follow the decision of Vickery J in Lysaght Building Solutions. He said that:[26]
[Clause 37] mandates a procedure for the certification of amounts payable. Once those amounts are payable then contractually they are not in dispute. A principal is given an opportunity to raise off setting claims for consideration by the superintendent. But if that is not done and an amount is certified then it must be paid. That is the point of Rolfe J's decision in Algons Engineering [Pty Limited v Abigroup Contractors Pty Limited (1998) 14 BCL 215] and it is a point which has been emphasised again and again in any number of cases.
[26] Primary decision [24].
The master said that the purpose of a provision such as cl 42.4 in the building context was to keep money flowing in a construction contract. He noted that this principle was also clearly expressed in the Constructions Contracts Act 2004 (WA), which, while not relevant in this case, acted as legislative acknowledgement of the importance of keeping money flowing in construction contracts.[27]
[27] Primary decision [25].
The master said that, properly viewed, cl 42.4 is a recognition of that principle and that such an interpretation does not affect the integrity of the arbitration process. A reasonable person would appreciate that if an amount which was required to be paid - which the parties had agreed would be paid - was not paid, then a resort to the courts for prompt enforcement was both reasonable and necessary. Such an interpretation did not affect the integrity of the arbitration process. Further, cl 37 anticipates that the process can follow through to completion and it may well be the award will favour the principal so that the contractor will be forced to disgorge some of the money they have received as progress payments.[28]
[28] Primary decision [26].
The master concluded that, in the circumstances, he was not satisfied that a stay ought to be granted based upon the interpretation of cl 37 and cl 42 and the Arbitration Act.[29]
[29] Primary decision [27].
The master then turned to consider the question of whether, in the exercise of discretion, a stay ought to be granted. He concluded, in effect, for the same considerations relating to maintaining the integrity of the construction contract process that a contractor be entitled to claim payment of a certified amount, it followed that he was not satisfied it would be a proper exercise of discretion to refer a claim such as the present to arbitration. He noted that it may be that an arbitrator could make an interim award which would effectively enforce the certified amount, but that question was not the subject of detailed submissions and counsel for MSP suggested there was doubt about that issue. He concluded:[30]
But even if an arbitrator was able to make an interim award which required payment of the certified amount, it is a clumsy process. It offers no real benefit to any of the parties. There is no warrant for issuing a stay on that basis.
[30] Primary decision [28].
The master also dealt with an issue raised by Tianqi about a multiplicity of proceedings. He said:[31]
[MSP] in this case has applied for summary judgment. Such applications are determined on affidavit evidence. Both counsels seemed to accept [Tianqi] would not be able to raise, in answer to the summary judgment application, a claim of equitable set off. By referring matters to arbitration [Tianqi] has foreclosed that possibility. That may or may not be correct - this is the hearing of a stay application and not a hearing on the summary judgment application. In any event, it seems unlikely any of [Tianqi's] witnesses who might file affidavit evidence on the summary judgment application would need to appear in person to give evidence. In other words, I am not satisfied that duplication of proceedings - insofar as there is any duplication - would favour the exercise of discretion and warrant the grant of a stay.
[31] Primary decision [29].

Appellant's application for a stay

Tianqi's evidence and arguments

Tianqi filed identical affidavits of its solicitor, Mr C Luck, sworn 21 July 2020, in support of the applications in both appeals. Mr Luck deposed, in effect, that it was Mr Luck's belief that the primary decision is contrary to prevailing authority in Western Australia. At the very minimum, the divergence in the case law is an issue of law that should be developed by the Court of Appeal.[32]
[32] Affidavit of C Luck sworn 21 July 2020, pars 9 - 10.
Mr Luck also deposed that:[33]
1.If a stay is not granted, the appeal may be rendered nugatory if the primary proceedings are heard and determined before the appeal.
2.Tianqi's right (on its case) to have disputes determined by arbitration, including the right to confidentiality, would be rendered nugatory.
3.Tianqi will suffer substantial prejudice if MSP's summary judgment applications proceed at the same time as the appeals, particularly as Tianqi is required (by order 4 of the master's orders) to file its responsive affidavit evidence by 23 July 2020.
4.Both parties will incur significant additional costs if the summary judgment application proceeds at the same time as an appeal of the decision. Most of these costs would be wasted if Tianqi was successful in its appeal.
5.Tianqi will be impacted in its ability to prepare its appeal if it must simultaneously defend the summary judgment application.
6.The appeal is of narrow compass and could be disposed of in less than half a day.
[33] Affidavit of C Luck sworn 21 July 2020, pars 11 - 17.
Tianqi filed a second affidavit of Mr Luck, sworn 3 August 2020, in support of its applications. Mr Luck referred, amongst other things, to the existing arbitration proceedings and said, in effect, that by its statement of claim in the arbitration, Tianqi sought, among other things, an order that the contracts be set aside, further or alternatively that they be declared void or otherwise unenforceable pursuant to s 243 of the Australian Consumer Law[34] due to MSP's allegedly misleading and deceptive conduct.
[34] See sch 2 of the Competition and Consumer Act 2010 (Cth).
Tianqi also relied on affidavits of Mr R F van Erp sworn 30 March 2020 and 8 May 2020 in the primary proceedings. The former affidavit annexed the relevant contractual documents, the notices to show cause issued by MSP, and Tianqi's notices of dispute, together with other correspondence between the parties. The latter affidavit annexed correspondence between the parties in relation to matters concerning the appointment of an arbitrator and the arbitration.
In submissions filed on 3 August 2020, Tianqi submitted, amongst other things, that there are special circumstances justifying an interim stay.[35] Tianqi submitted that the stay is necessary to preserve the subject matter or integrity of the litigation, that the appeal has reasonable prospects of success, and that the balance of convenience favours a stay. Tianqi also submitted that in Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd at [77], [89] and [91], this court recognised the importance of protecting such rights in the context of an appeal of a refusal to refer a matter to arbitration. Tianqi submitted that these rights have already been impaired by MSP's institution of the primary proceedings.[36]
[35] Appellant's written submissions filed 3 August 2020, pars 14 - 15, referring to Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [47] - [48].
[36] Appellant's written submissions filed 3 August 2020, pars 17 - 20.
Tianqi submitted that the appeal has reasonable prospects of success, having regard to s 8(1) of the Arbitration Act and the conflict of judicial authority on the point. Tianqi also submitted that the master was not correct when he stated at [13] of the primary decision that Tianqi accepted that it was liable to make payment of the certified amounts. Tianqi referred to the affidavit of Mr van Erp sworn 30 March 2020, filed in the primary proceedings. The affidavit annexed notices of dispute issued under the contracts and stated that by the notices Tianqi disputed that it was liable to MSP for any amounts claimed under the contracts, based on MSP's misleading and deceptive conduct, and that in any case it was entitled to set off an amount in excess of the amounts claimed.[37]
[37] Appellant's written submissions filed 3 August 2020, pars 26 - 27, 46.
Tianqi submitted that the balance of convenience favours a stay as:
1.Tianqi pursued the appeals promptly. The appellant's case was filed on 3 August 2020. The respondent's answer is due to be filed by 17 August 2020. Subject to the court's availability, the appeals can be heard quickly and are confined to the construction of a single clause.[38]
2.MSP's submissions on the issue of the balance of convenience that it is out of pocket are not correct if Tianqi's arguments adopted in the arbitral proceedings on misleading and deceptive conduct are accepted.[39]
3.If a stay is not granted, Tianqi will lose, at least in part, the benefit of its rights to keep its disputes and the content of those disputes with MSP confidential.[40]
4.Substantial costs will be incurred if the parties are required to proceed with the primary proceedings whilst the appeals are being conducted.[41] Tianqi accepts that the cost of preparing its affidavit in the summary judgment application is largely unavoidable as it must be submitted the day after the hearing of the stay application in the appeal, the remaining costs in the primary proceedings are likely to be substantial and will have been wasted if Tianqi succeeds on the appeals.[42]
5.As stated in Mr Luck's first affidavit, noted at [43(5)] above, Tianqi's ability to properly prepare for the appeals will be curtailed if it is forced to defend the primary proceedings at the same time.[43]
6.The prejudice suffered as a result of the primary proceedings not being stayed must be given due weight in light of Tianqi's strong prospects of success in the appeals.[44]
[38] Appellant's written submissions filed 3 August 2020, pars 40 - 42.
[39] Appellant's written submissions filed 3 August 2020, pars 43 - 47.
[40] Appellant's written submissions filed 3 August 2020, par 48
[41] Appellant's written submissions filed 3 August 2020, par 49.
[42] Appellant's written submissions filed 3 August 2020, par 50.
[43] Appellant's written submissions filed 3 August 2020, par 51.
[44] Appellant's written submissions filed 3 August 2020, par 52.
On the hearing of the application for a stay, Tianqi sought leave to file further affidavit evidence in relation to an alleged termination of the contracts by Tianqi on the preceding business day. The court made programming orders, pursuant to which Tianqi filed a further affidavit of Mr van Erp sworn 10 August 2020 and further submissions on 11 August 2020. By his further affidavit, Mr van Erp said, in effect, that on 7 August 2020, he had caused notices of termination to be served on MSP in pursuance of Tianqi's (asserted) rights under cl 39.4(b) of the contracts.[45]
[45] Affidavit of R F Van Erp sworn 10 August 2020, par 4.
By its further submissions, Tianqi contends, in effect, that:
1.Tianqi has terminated the contracts pursuant to written notices on 7 August 2020, with the result that the provisions of cl 39.10 of the contracts apply.[46]
2.The last paragraph of cl 39.10 confers an express right of set off not confined to amounts presently due from the other party, nor limited to amounts arising under the contracts.[47]
3.The cl 39.10 right of set off is unconstrained by any impediment to set off which might otherwise apply to certified payments under cl 37. The result is that Tianqi is entitled to set off from any amounts otherwise due to MSP the amounts claimed by Tianqi, both under the contracts and under statute for misleading or deceptive conduct.[48]
4.Further, the effect of the first paragraph of cl 39.10 is to permit a party to rely upon equitable set off following termination, regardless of what may have been the position prior to termination.[49]
5.This construction of cl 39.10 is consistent with the decision in Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq).[50] That decision has been cited with apparent approval by the Victorian Court of Appeal in Aquatec‑Maxcon Pty Ltd v Minson Nacap Pty Ltd.[51]
6.Further, the rights of set off arising from cl 39.10 are separate and distinct from cl 42 of the contracts. Although the underlying claims may be subject to arbitration in accordance with cl 42, Tianqi's entitlement to set off the amounts which may become due under those claims may be enforced in any circumstance, including in the primary proceedings, such that MSP's submissions as to the balance of convenience in relation to the availability of set off and Tianqi's ability to raise it in the primary proceedings, should not be accepted.[52]

MSP's opposition to the appellant's application

[46] Appellant's written submissions filed 11 August 2020, pars 3 - 5.

[47] Appellant's written submissions filed 11 August 2020, pars 8 - 9.

[48] Appellant's written submissions filed 11 August 2020, par 10.

[49] Appellant's written submissions filed 11 August 2020, par 11.

[50] Appellant's written submissions filed 11 August 2020, pars 12 - 16, citing Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2002] QCA 224; [2003] 1 Qd R 259 [20], [24].

[51] Appellant's written submissions filed 11 August 2020, par 17, citing Aquatec‑Maxcon Pty Ltd v Minson Nacap Pty Ltd [2004] VSCA 18; (2004) 8 VR 16 [53] - [54].

[52] Appellant's written submissions filed 11 August 2020, par 19.

The affidavit of Mr R Smith, sworn 29 July 2020, in opposition to Tianqi's application deposed, in effect, that there will be substantial prejudice to MSP if Tianqi is granted a stay in that:
1.Based on a review of MSP's records, a 'joint leadership team' meeting occurred on or around 23 August 2019 between key personnel from Tianqi and MSP. Tianqi requested MSP use its working capital reserve to pay LHPP1 and LHPP2 project contractors even though it had not itself been paid the certified progress claims.[53] Since August 2019, MSP has utilised:[54]
(a)$10,973,754 of its working capital to pay its contractors on the project; and
(b)$1,417,803 of its working capital to continue to operate its business, pay employees and work to bring the LHPP projects to a conclusion.
2.MSP would not have been required to utilise its working capital in this way if Tianqi had paid the undisputed sums due and owing to MSP. The fact that MSP has had to utilise its working capital in this way has already caused MSP substantial prejudice, and the extent of the prejudice will only increase if it is unable to proceed with its summary judgment application pending the outcome of Tianqi's appeal.[55]
3.Since September 2019, key personnel of MSP have been heavily engaged in negotiating and dealing with contractors and managing disputes arising from non-payment on the LHPP1 and LHPP2 projects. This has been a significant focus of MSP's senior management, rather than being engaged in securing new business and closing out the LHPP1 project. MSP has had to devote considerable time and attention to the recovery of funds due to Tianqi's non-payment.[56]
4.MSP is aware that there has been extensive media coverage and announcements to the Shenzen Stock Exchange to the effect that Tianqi and its parent company are in financial difficulty and that its parent company is considering disposing of its assets in Australia. An article from The West Australian newspaper titled 'Tianqui reveals extent of Kwinana lithium hydroxide plant cost blowout' dated 23 July 2020 is annexed to the affidavit.[57]
5.The non-payment of Tianqi's certified progress claims is not only having a detrimental impact on MSP but also the construction industry. As a consequence of Tianqi's non-payment, it has entered into various settlement arrangements with contractors. Some of the contractors' claims were settled with the contractors in the interests of the project, sometimes with involvement of Tianqi, and sums due and owing to MSP have not been recovered from Tianqi. MSP has been required to negotiate an outcome with contractors that has left MSP in a weakened position. In particular, in some instances, this has resulted in MSP agreeing to the early release of securities such as bank guarantees.[58]
[53] Affidavit of R Smith sworn 29 July 2020, par 12.
[54] Affidavit of R Smith sworn 29 July 2020, par 13.
[55] Affidavit of R Smith sworn 29 July 2020, pars 14 - 15.
[56] Affidavit of R Smith sworn 29 July 2020, pars 16 - 19.
[57] Affidavit of R Smith sworn 29 July 2020, par 20, annexure ROS1.
[58] Affidavit of R Smith sworn 29 July 2020, pars 20 - 24.
MSP also relied on affidavits in the primary proceedings sworn by Mr A Rowe on 1 May 2020 and Mr J Dunbar on 1 May 2020. The former affidavit (amongst other things) (1) annexed the Superintendent's progress payment certificates, the subject of MSP's claims in the primary proceedings, (2) included evidence to the effect that Tianqi had agreed to a payment plan to pay the moneys certified as due, pursuant to which Tianqi made a number of payments but thereafter ceased making payments, (3) annexed correspondence from Tianqi in February 2020 to the effect that Tianqi was not in a position to pay its creditors, and (4) included evidence to the effect that Tianqi had not disputed liability under the progress payment certificates until after MSP had issued a statutory demand on 26 February 2020, and had served its writs in the primary proceedings on 5 March 2020. The latter affidavit also annexed correspondence from Tianqi to the effect that it was unable to meet the agreed payment plan.

MSP filed an affidavit of Mr J Dunbar on 12 August 2020, and submissions in response to Tianqi's further affidavit and submissions referred to in [49] ‑ [50] above. Mr Dunbar's affidavit of 12 August 2020 annexed MSP's responses, dated 11 August 2020, to the 'purported notices of termination'.
In submissions filed 29 July 2020, MSP submitted, in effect, that where a progress amount is certified as owing and the principal does not set off any amount prior to the due date for payment, the certified amount is payable, and the principal has a legal obligation to pay it. If moneys are owed to the principal that could have been set off but were not, this is dealt with in the final certificate process of cl 37.4.[59]
[59] Respondent's written submissions filed 29 July 2020, pars 19 - 20, citing Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388 [45].
MSP also submitted that:
1.There is 'extensive and substantial' public evidence that Tianqi and its parent company are in financial difficulty and that its parent company is considering disposing of its assets in Australia. If MSP is unable to proceed with its summary judgment applications now, there is a risk that by the time the appeal is determined, Tianqi will not be in a position to satisfy any judgment awarded against it.[60]
2.The appeal will not be rendered nugatory if a stay is not ordered because when the applications for summary judgment proceed to hearing and if judgment is ordered, Tianqi can then seek a stay of execution if the appeal has not been resolved.[61]
3.Tianqi has not specified the alleged error by the master. Nevertheless, the prospects of the appeals succeeding are remote.[62]
4.The master's reasoning in the primary decision was correct because the reasoning in GR Engineering and Eriez Magnetics was plainly wrong.[63]
5.The balance of convenience favours a stay not being granted because:
(a)As the master identified in [24] - [26] of the primary decision, money must be kept flowing in a construction context, as the head contractor must pay its subcontractors who in turn must meet expenses. Prompt enforcement of amounts payable is both reasonable, necessary and the intention of cl 37 and cl 42.4.[64]
(b)MSP has and continues to suffer prejudice due to non‑payment by Tianqi (as set out in the affidavit of R Smith sworn 29 July 2020).[65]
(c)Tianqi has not offered any undertaking or security.[66]
[60] Respondent's written submissions filed 29 July 2020, pars 10 - 11.
[61] Respondent's written submissions filed 29 July 2020, par 12.
[62] Respondent's written submissions filed 29 July 2020, par 13.
[63] Respondent's written submissions filed 29 July 2020, par 14.
[64] Respondent's written submissions filed 29 July 2020, par 15, see also par 18.
[65] Respondent's written submissions filed 29 July 2020, par 16.
[66] Respondent's written submissions filed 29 July 2020, par 17.
MSP filed a response to Tianqi's submissions on 7 August 2020. MSP submitted, in effect, that:
1Tianqi's contention that it has a statutory and contractual right to have the matter determined by arbitration assumes the correctness of its contention as to the proper construction of cl 42.4 of the contract.[67]
[67] Respondent's written responsive submissions filed 7 August 2020, pars 3 - 5.
2.The arbitration in this case is unlike the one in Hancock Prospecting, which concerned sensitive family matters, to which confidentiality would plainly attach.[68]
[68] Respondent's written responsive submissions filed 7 August 2020, pars 6 - 7.
3.Tianqi did not seek an order before the master that the court be closed or for the suppression of the master's reasons on the basis of confidentiality. Nor has Tianqi sought to outline the nature of any commercially sensitive matters it may wish to be protected. Nor has it offered a confidentiality regime for consideration by MSP or the court.[69]
4.As Tianqi has conceded, insofar as the underlying materials are said to be commercially sensitive, they are already in the public domain.[70]
5.Tianqi's claims have been referred to arbitration and cannot be raised as a defence in the primary proceedings 'because this court, and the arbitration, being different fora, cannot resolve the same issue'. Further, MSP's claims in the primary proceedings have not been referred to arbitration.[71]
6.The parent company of Tianqi is a publicly listed company that reports to the relevant stock exchange in China. In that context, it may be inferred that the following matters have been disclosed to the stock exchange and are thereby not confidential:[72]
(a)the certification of the progress claims;
(b)the delays and difficulties acknowledged by Tianqi in making payments pursuant to the certified progress claims; and
(c)the acknowledgements by Tianqi that it was not in a position to meet the claims of its creditors.
7.The appeal has no reasonable prospect of success, having regard to the proper construction of cl 42.4 read in the context of cl 37.[73] MSP contended that, on the proper construction of cl 37, Tianqi could not raise an equitable set off against the certified progress payments.[74] Reference was made to a number of authorities, including: Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd;[75] Bayside Civil & Drainage Pty Ltd v Marinestar Holdings Pty Ltd;[76] Daysea Pty Ltd v Watpac Australia Pty Ltd;[77] Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd;[78] Lysaght Building Solutions; Novawest Contracting Pty Ltd v Taras Nominees Pty Ltd;[79] and Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd.[80]
[69] Respondent's written responsive submissions filed 7 August 2020, par 8.
[70] Respondent's written responsive submissions filed 7 August 2020, par 9.
[71] Respondent's written responsive submissions filed 7 August 2020, pars 12 - 13.
[72] Respondent's written responsive submissions filed 7 August 2020, pars 15 - 25.
[73] Respondent's written responsive submissions filed 7 August 2020, par 30.
[74] Respondent's written responsive submissions filed 7 August 2020, par 43.
[75] Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215, 230.
[76] Bayside Civil & Drainage Pty Ltd v Marinestar Holdings Pty Ltd [2000] WASC 17 [10].
[77] Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49; (2001) 17 BCL 434, 439.
[78] Main Roads Construction Pty Ltd v Samary Enterprises Pty Ltd [2005] VSC 388 [45].
[79] Novawest Contracting Pty Ltd v Taras Nominees Pty Ltd [1998] VSC 205 [124] ‑ [127].
[80] Vantage Holdings Pty Ltd v JHC Developments Group Pty Ltd [2011] QSC 155 [43] ‑ [45].
By its submissions filed 12 August 2020, MSP contended, in effect, that the notices served by Tianqi on 7 August 2020 in relation to termination are irrelevant. MSP contends that if the appeal failed, and Tianqi sought to rely on the notices at the hearing of the summary judgment application with a view to raising an arguable defence of equitable set off, then those arguments would need to be addressed then. However, the notices, issued some months after the master's decision, could not point to any error in the master's decision.

Disposition

Principles

The principles in relation to a stay pending the determination of the appeal were not in dispute. In general terms:[81]
(a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act) this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the Supreme Court (Court of Appeal) Rules 2005 (WA) this is also a usual requirement.
(c)The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e)Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.

Consideration

[81] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]; Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].

Having considered the parties' arguments and materials, it appears to us that, overall, the interests of justice warrant the refusal of a stay. The following matters appear to us to be the most significant.
We accept that if a stay were not granted, the appeals would be rendered nugatory in the sense that the curial process involving MSP's application for summary judgment would continue in the primary proceedings, when the point of the appeals is to obtain a determination that the court should not be seized of the summary judgment application. However, the court could grant appropriate relief if a stay were refused and Tianqi were to succeed in the appeal. In those circumstances the court could make consequential orders setting aside any judgment made in the primary proceedings and order restitution of any money paid pursuant to the judgment that was set aside. This aspect of the stay application is best considered as part of the evaluation of the balance of convenience.
We also accept that the appeals are reasonably arguable in the relevant sense. The authorities of Eriez Magnetics and GR Engineering Services in the General Division of this court are, on one view, arguably inconsistent with the Victorian decision in Lysaght Building Solutions and with the construction accepted by the master. There do not appear to be any cases in the High Court or an intermediate appellate court which have determined the issue of construction raised by the appeal.
None of the three aspects of prejudice if a stay is refused, to which Tianqi points, are particularly compelling considerations in favour of the grant of a stay.
Tianqi's submission that it will incur substantial costs in the prosecution of its defence to the primary proceedings must be evaluated in the context where well in excess of $30 million is claimed in those proceedings. In that context, the costs of defending a summary judgement application do not appear to us to be a weighty factor. Further, Tianqi accepts, in effect, that, as any affidavits in opposition to the summary judgment application will be filed shortly after the hearing of this stay application, incurring the cost of preparing those affidavits 'is largely unavoidable' in any event. Tianqi would ordinarily be entitled to a costs order against MSP in respect of costs it has incurred in the primary proceedings if this court were to uphold the appeal. It seems to us that the irrecoverable legal costs to which Tianqi will be exposed in the primary proceedings, which may be wasted if its appeal succeeds, will be limited.
Tianqi's submission that its ability to properly prepare for the appeals would be curtailed if it is forced to defend a summary judgment application at the same time is entirely without merit. Tianqi appears to be a well-resourced litigant dealing in construction contracts valued in the tens of millions of dollars. It must be well within Tianqi's capacity to prosecute the appeals on a narrow question of construction of a contractual clause while defending the summary judgment applications. That is particularly so where, as here, Tianqi has filed its appellants' case in the appeals, which certifies that in all respects, other than the preparation of appeal books, Tianqi is ready for the hearing of the appeal. This point could not reasonably have been advanced, either in submissions or the affidavit in support of the stay application.
Of potentially greater force is Tianqi's third point that, if a stay is not granted, it will lose, at least in part, the benefit of its dispute and the contents of its disputes with MSP remaining confidential. That will be so if the appeals succeed, but not if the appeals fail. Against the prospect that the appeals may succeed, consideration is appropriately given to the existence or nature of confidential information which would need to be disclosed in defence of the summary judgment application, the confidentiality of which could not be protected by orders made in the primary proceedings.
In our view, Tianqi gains very limited support from the decision of this court in Hancock Prospecting. There are two important differences between that case and the present appeal. First, the arbitration provision in that case was contained in a deed the critical object of which was the maintenance of confidentiality about the affairs of the Hancock Group, and an intra-family dispute about trusts.[82] Secondly, the disclosure of concern in Hancock Prospecting was not a public disclosure which could be prevented by confidentiality orders. Rather, it was a disclosure by pleadings and discovery to other parties to that litigation (WPPL and the Rhodes parties) who were not party to the arbitration agreement in that case and who were in commercial disputation with the parties to the arbitration agreement.[83]
[82] Hancock Prospecting [37].
[83] Hancock Prospecting [78] - [79].
The present case is far removed from the context of the intra‑family dispute considered in Hancock Prospecting. Further, Tianqi has not adduced any evidence of any commercially sensitive matters that it would consider necessary to disclose in defence of the summary judgment application, and which may cause it substantive prejudice. Nor has Tianqi proffered a confidentiality regime by which that information might be protected, or sought any confidentiality orders in either the primary proceedings or this appeal. The only specific matter to which Tianqi's submissions point is a newspaper report of what are said to be commercially sensitive matters, which Tianqi attributes to the institution of the primary proceedings.[84] However, those matters are already in the public domain, so that a stay granted now cannot prevent any prejudice arising from disclosure of those matters. On the current state of the evidence, the prospect of Tianqi being materially prejudiced by the loss of confidentiality which is of value to it, if a stay is not granted, appears speculative.
[84] Appellant's written submissions filed 3 August 2020, par 19.
As to the aspects of the balance of convenience in favour of MSP, we accept that the non‑payment of the certified amounts has adversely affected MSP's cashflow, including adversely affecting its dealings with other contractors. We also accept that there would be potential financial prejudice to MSP in terms of cashflow arising from the delay in the enforcement of its claims associated with a stay pending the determination of the appeals, particularly in a context where there is evidence that Tianqi has been unable to pay its creditors.
It may also be noted that there is no evidence before this court to the effect that MSP would be unable to satisfy any consequential restitutionary order if the appeals were successful. In any event, the prejudice to Tianqi would arise at the point judgment was sought to be enforced. As MSP submits, if summary judgment were entered against Tianqi before the determination of the appeals, then, at that point, Tianqi could apply for a stay.
In assessing the balance of convenience, we also take into account that it seemed to us appropriate to make an urgent appeal order irrespective of the outcome of the stay application. The point raised by the appeals is a relatively short one, and Tianqi has filed an appellant's case. The appeals have now been listed for hearing on 8 September 2020. The prejudice to MSP arising from the delay associated with the determination of the appeals is ameliorated by the urgent appeal order. Equally, the urgent appeal order limits the steps which will be taken in the primary proceedings before the appeals are determined. However, at this stage it is not clear how long judgment may need to be reserved to allow the proper determination of the appeals.
Tianqi adduced evidence of the purported termination of the contracts by notice delivered on 7 August 2020. MSP disputes the effectiveness of those notices to terminate the contracts. Tianqi submits that cl 39.10 of the contracts confers a right of set-off in respect of a payment required by cl 27 in circumstances where it has exercised its right to terminate the contracts. It does not appear to us that this issue is of any real significance to the determination of the stay applications. Whether there is an arguable right of set-off if the contracts are terminated might be an issue of significance in the determination of the summary judgment applications. However, the effect of those events subsequent to the master's decision it is not a question which arises on the grounds in this appeal, which challenge the correctness of the master's decision on the material before the primary court. Nor does the existence of that possible response to the summary judgment application significantly impact on the balance of convenience in allowing the preparation and determination of that application to be progressed pending the determination of this appeal.
Balancing all of the above factors, we are not satisfied that it is in the interests of justice to grant a stay of the primary proceedings at this stage. Rather, the balance of convenience would seem to favour allowing MSP's summary judgment application to proceed to hearing and determination.
In reaching this conclusion, we allow for the prospect that the balance of convenience may change once the summary judgment application is determined. Whether or not a stay is appropriate after the determination of the summary judgment application would depend on all the circumstances at the time and might be influenced by (amongst other things) the stage at which the appeal is at and evidence as to the financial position of the parties at that time.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell
14 AUGUST 2020