JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: TOTAL EDEN PTY LTD -v- ECA SYSTEMS PTY LTD [2017] WASC 58
CORAM: PRITCHARD J
HEARD: 9 FEBRUARY 2017
DELIVERED : 9 FEBRUARY 2017
FILE NO/S: CIV 1202 of 2017
BETWEEN: TOTAL EDEN PTY LTD
Plaintiff
AND
ECA SYSTEMS PTY LTD
Defendant
Catchwords:
Practice and Procedure - Remittal
Practice and Procedure - Suspension of enforcement of determination of adjudicator under Construction Contracts Act 2004 (WA) - Special circumstances - Reasonable prospects of success - Balance of convenience
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
Construction Contracts Act 2004 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
Plaintiff: Mr D Shaw
Defendant: Mr R Blow
Solicitors:
Plaintiff: Gandhi and Shaw
Defendant: Lateral Legal
Cases referred to in judgment:
Alliance Contracting Pty Ltd v James [2014] WASC 212
Chantec Pty Ltd v Comgroup Supplies Pty Ltd [2001] WASCA 238
Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693
Cooper & Oxley Builders Pty Ltd v Steensma [2016] WASC 386
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Laing O'Rourke Australia Construction Pty Ltd v Samsung C&T Corporation [2015] WASC 237
Love v KWS Capital Pty Ltd [2013] WASC 466
Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328
Re Graham Anstee-Brook; Ex parte Karara Mining Ltd [2012] WASC 129
PRITCHARD J:
(This judgment was delivered extemporaneously on 9 February 2017 and has been edited from the transcript.)
This is an application brought by the plaintiff (Total Eden) for orders that the Court remit District Court of Western Australia action CIVO 1202 of 2016 to this Court to be heard with CIV 3206 of 2016. CIV 3206 of 2016 is an application by Total Eden for judicial review of a determination made by an adjudicator (the adjudicator) pursuant to the Construction Contracts Act 2004 (WA). In addition, Total Eden seeks an order, pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA), suspending the enforcement of the judgment obtained in CIVO 1212 of 2016 until the determination of the judicial review application (the suspension application).
For the reasons which I am about to give, Total Eden succeeds in its application. I will make an order that the proceedings in the District Court CIVO 1212 of 2016, be remitted to this Court, and I will make an order that there be a suspension of the enforcement of the judgment obtained in that proceeding until the determination of the judicial review application.
In these reasons, I will deal with the following matters:
1.A brief outline of the facts;
2.whether CIVO 1202 of 2016 should be remitted from the District Court to this Court; and
3.whether the suspension application should be granted, having regard to the existence of special circumstances, reasonable prospects of success and the balance of convenience.
A brief outline of the facts
The facts are somewhat convoluted…
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- Case
- [2017] WASC 58
- Decision Date
CaseChat Overview and Summary
The central issue in the case is whether this Court should remit the action brought by ECA Systems in the District Court. The Court must determine if there are special circumstances which warrant the exercise of the power to remit under s 76 of the District Court Act 1969 (WA). In addition, the Court must consider whether there are reasonable prospects of success on the merits of the case and whether the balance of convenience favours the making of the order sought. This involves weighing the competing interests of the parties and the potential for prejudice or injustice if the action is not remitted.
The Court considered the relevant statutory provisions and case law regarding the power to remit. It found that there were special circumstances warranting the exercise of the power to remit, including the existence of two judgments in respect of the same determination and the potential for an abuse of the process of the Court. The Court also found that there were reasonable prospects of success on the merits of the case and that the balance of convenience favoured the making of the order sought. The Court therefore remitted the action to this Court.
The Court made an order remitting the action to this Court and directed that the application to suspend enforcement be heard in this Court. The Court also made orders for costs.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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