State of New South Wales v Austeel Pty Limited [2003] NSWSC 1077

New South Wales Supreme Court

CITATION : State of New South Wales v Austeel Pty Limited [2003] NSWSC 1077 HEARING DATE(S) : 20 November, 2003 JUDGMENT DATE : 21 November 2003 JURISDICTION: Equity JUDGMENT OF : Palmer J DECISION : Plaintiff's Summons dismissed.

CATCHWORDS : CONTRACT - CONSTRUCTION - Dispute resolution clause - whether notice triggering dispute resolution mechanism validly given - what is meant by "dispute" - no point of principle involved. LEGISLATION CITED : Commercial Arbitration Act 1984 (NSW) PARTIES : State of New South Wales - Plaintiff Austeel Pty Limited - Defendant FILE NUMBER(S) : SC 5801/03 COUNSEL : P.J. Brereton - Plaintiff A. Bulley - Defendant SOLICITORS : Freehills - Plaintiff Kemp Strang - Defendant

Introduction

1 The Plaintiff ("the State") and the Defendant ("Austeel") are parties to an Agreement dated 14 February 2001 whereby, in order to induce Austeel to construct a large steel plant in Newcastle, the State agreed to invest in infrastructure and otherwise to co-operate with Austeel in achieving a successful completion of the project. 2 The Agreement contains a dispute resolution clause, the activation of which is triggered by the giving of a written notice of the dispute by one party to the other. On 7 November 2003, Austeel gave to the State a notice which, it said, activated the dispute resolution clause. The State has denied the effectiveness of the notice for that purpose. 3 On 18 November 2003, the State sought, and was granted, leave to serve on short notice a Summons seeking the following relief:

– a declaration that the Notice of Dispute dated 7 November 2003 served by Austeel ("the Notice") is not a valid notice pursuant to clause 14.1 of the Agreement;