Dualcorp Pty Limited v Remo Constructions Pty Limited [2008] NSWSC 749

New South Wales Supreme Court

CITATION : Dualcorp Pty Limited v Remo Constructions Pty Limited [2008] NSWSC 749

HEARING DATE(S) : 11 July 2008 JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 11 July 2008

DECISION : See paragraph [31] of the judgment.

CATCHWORDS : BUILDING AND ENGINEERING CONTRACTS – contract dispute – compulsory dispute resolution procedure - application for stay of proceedings – discretion.

CATEGORY : Procedural and other rulings

Australian Broadcasting Commission v Australasian Performing Right Association (1973) 129 CLR 99 BP Refinery (Westernport) v Hastings Shire Council (1977) 180 CLR 266 CASES CITED : Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 147 CLR 337 Hillas & Co v Arcos Limited (1932) 38 Com. Cas. 23 Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 Savcor v State of New South Wales (2001) 52 NSWLR 587

PARTIES : Dualcorp Pty Limited (ACN 115 266 021) (Plaintiff) Remo Constructions Pty Limited (ACN 117 453 826) (Defendant)

FILE NUMBER(S) : SC 55038/08

COUNSEL : I G Roberts (Plaintiff) F P Hicks (Defendant)

SOLICITORS : Turner Freeman (Plaintiff) Moray & Agnew (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

McDOUGALL J

11 July 2008 ex tempore (revised 13 July 2008)

55380/08 DUALCORP PTY LIMITED v REMO CONSTRUCTIONS PTY LIMITED JUDGMENT 1 HIS HONOUR: In July 2007 the defendant (Remo) as contractor and the plaintiff (Dualcorp) as sub-contractor entered into a sub-contract relating to a project at Five Dock. Under that sub-contract Dualcorp was to carry out demolition, excavation and piling works. 2 Although it appears substantial amounts of work have been carried out under the sub-contract, the parties have had a number of disputes. Some of those disputes they have sought to resolve through the contractual dispute resolution mechanism, to which it will be necessary to turn. Dualcorp seeks to have other disputes resolved in these proceedings. 3 Clause 14 of the sub-contract deals with dispute resolution. It provides, on the face of things, for a staged dispute resolution process. The first stage, cl 14.1, consists of compulsory conferences following the giving of written notice of dispute. The second stage, cl 14.2, provides for compulsory mediation. That second stage is engaged if the compulsory conference process has not resolved the dispute. 4 The third stage, cl 14.3, is for reference to expert determination. That is said in the heading to cl 14.3 to be "final and binding". The meanings by which (if at all) it is made final and binding are infelicitously expressed: (f) The determination of the expert is not subject to review under this Agreement, but may be the subject of judicial review by a Court of competent jurisdiction who grants leave for an appeal of the expert's determination.