BETWEEN : BAYSIDE CIVIL & DRAINAGE PTY LTD (ACN 065 070 733)

Plaintiff's application for summary judgment - Defendant's application for a stay of the action pending a reference to arbitration - Which application should be heard first - Programming orders

1 MASTER BREDMEYER: The plaintiff has applied for summary judgment. It seeks payment of two progress claims made under a construction contract AS 2124-1992. The defendant has applied for a stay of the action based on an arbitration clause in the contract. The defendant says this action should be stayed and the matter referred to arbitration.

2 Both counsel are agreed that each application needs to go to a special appointment. The defendant wants its stay application heard first because, if successful, the action and the summary judgment application will be stayed and the costs of preparing for the latter application will be avoided. The plaintiff wants the two applications heard at the same special appointment with the stay application being heard first. If it fails, the plaintiff's summary judgment application would be heard immediately afterwards. He is confident that the stay application will fail and that the summary judgment application will succeed and does not want to delay the hearing of the latter application.

3 Normally I would accede to the defendant's request because the defendant's application is a challenge to jurisdiction and, if it succeeds, the action and the plaintiff's application will be stayed and the defendant's costs of preparing for the summary judgment application will be avoided. But in this case I am going to accede to the plaintiff's request. I consider that the defendant's application is likely to fail because of cl 47.4 of the contract which provides" "Nothing in the agreement shall prejudice the right of a party to institute proceedings to enforce payment due under clause 42". I also consider that the plaintiff's summary application is strong especially in relation to progress claim No 2. It is strong because it is based on cl 42.1 of that contract which, in effect, states that once a superintendent has issued a payment certificate for a progress claim, the money should be paid without consideration of offsetting claims. The plaintiff relies on the strong decision on this point of the Queensland Court of Appeal in Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd (1996) 13 BCL 31. That decision was followed by me in Lamac Developments Pty Ltd v Devaugh Pty Ltd (1999) WASC 76 delivered on 25 June 1999. That decision was taken on appeal by the defendant Devaugh Pty Ltd. The appeal has been heard by our Full Court and the decision is expected within a few days. I will make the programming orders as per the plaintiff's minute with the addition of the following words to order 8:

"The defendant's stay application to be heard first."