International Construction Law Review
AUSTRALIAN CASE LAW DEVELOPMENTS
Andrew Stephenson
Partner, Corrs Chambers Westgarth
Jey Nandacumaran
Special Counsel, Corrs Chambers Westgarth
Harrison Frith
Law Graduate at Corrs Chambers Westgarth
The following three case notes provide a snapshot of recent Australian law decisions that may be of interest to our international colleagues.
The first case concerns the “prevention principle”, albeit in a non-construction law context. The decision may be used – incorrectly we think – in support of a narrower application of the principle.
The second case illustrates the continuing judicial support for arbitration agreements in Australia, even where a party seeks to have a dispute in relation to jurisdiction determined by a superior court.
In the third and final case, all issues raised on the pleadings in a significant gas project (with claims exceeding AUS$1.4 billion) were referred by a superior court to a panel of three referees with wide discretion in respect of the procedure to be adopted, similar to the discretion of an arbitrator.
PREVENTING PROPER PERFORMANCE
The Victorian Court of Appeal’s decision in Bensons Property Group Pty Ltd v Key Infrastructure Australia Pty Ltd
1 raises questions about the application and juridical basis of the “prevention principle”.
The High Court of Australia declined to grant special leave in Bensons.2 As a result, there are now conflicting decisions at the intermediate appellate level about when the prevention principle is available. The Court of Appeal in Bensons said that the principle only applies where the alleged act of prevention is also a breach of contract.
1 [2021] VSCA 69 (Bensons). The parties are referred to as KIA and Bensons in this note.
2 Key Infrastructure Australia Pty Ltd v Bensons Property Group Pty Ltd [2021] HCATrans 185.
Pt 4] Australian Case Law Developments
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