MP Water Pty Ltd in its capacity as Trustee for the MP Water Trust v Veolia Water Australia Pty Ltd [2022] NSWCA 127

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: MP Water Pty Ltd in its capacity as Trustee for the MP Water Trust v Veolia Water Australia Pty Ltd [2022] NSWCA 127 Hearing dates: 4 April 2022 Date of orders: 21 July 2022 Decision date: 21 July 2022 Before: Ward P at [1] Macfarlan JA at [2] Mitchelmore JA at [3] Decision: (1) Grant leave to appeal. (2) Order that the applicant file a notice of appeal in accordance with the draft Notice of Appeal within 7 days. (3) Appeal allowed. (4) Set aside orders 1 and 2 of the orders of the primary judge dated 13 August 2021. (5) Declare that clause 44 of the contract between the parties, described in the Services Provider Agreement (SPA) conferred on the appellant a power to direct the respondent as to the actions the respondent must undertake, and a correlative obligation imposed on the respondent to undertake the directed actions, to operate the Facility and provide the Services so as to overcome the Services Provider Default which had occurred and which was the subject of the notice dated 13 May 2021 that the appellant gave to the respondent (each of the capitalised terms as defined in the SPA). (6) Remit the costs of the proceedings below to the trial judge. (7) The respondent pay the appellant's costs of the appeal. Catchwords: CONTRACTS – construction – contract for the provision of services in relation to water treatment facility – "step-in" clause requiring subcontractor to "assist" principal contractor – whether clause authorises the principal to direct the subcontractor to operate the facility and provide the services and requires subcontractor to comply with such direction – whether "Facility" as defined in the contract had come into existence as a condition to the exercise of step-in rights Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12.1 Cases Cited: H Lundbeck A/S v Sandoz Pty Ltd; CNS Pharma Pty Ltd v Sandoz Pty Ltd [2022] HCA 4; (2022) 399 ALR 184 Lawrence v Ciantar [2020] NSWCA 89 Category: Principal judgment Parties: MP Water Pty Ltd in its capacity as trustee for the MP Water Trust (Applicant) Veolia Water Australia Pty Ltd (Respondent) Representation: Counsel: Mr J Giles SC, Mr J Hutton and Mr W Marshall (Applicant) Mr M Ashurst SC and Ms J Wright (Respondent)