Trident Australasia Pty Ltd v Nexus Energy Corporate Pty Ltd

REASONS FOR JUDGMENT 1 The respondent, Nexus, applied to stay this proceeding in which the applicant, Trident, claims that Nexus has failed to pay invoices totalling SGD18,392.58; and AUD2,521,406.30. Trident also claims that Nexus has contravened s 52 of the Trade Practices Act 1974 (Cth) and claims damages. The invoices were rendered by Trident to Nexus in respect of services which it rendered in relation to the building of an offshore pipeline in Bass Strait, Victoria, as part of the Longtom Gas Project conducted by Nexus. 2 At the hearing of Nexus's application on 24 September 2010, I dismissed the application and gave short oral reasons. I said I would give fuller reasons later. These are the reasons. 3 Nexus contended that the matters in dispute ought to be referred to arbitration in accordance with the arbitration agreement entered into between the parties. Accordingly, contended Nexus, the Court should in the exercise of its discretion stay this proceeding.

did the parties enter into an arbitration agreement? 4 The threshold question, therefore, is whether the parties did, in fact, ever make an arbitration agreement as Nexus contends. The relevant facts can be briefly stated. 5 On 25 June 2007, Nexus entered into an agreement with a company, T-D Joint Venture Pty Ltd (TDJV) pursuant to which TDJV undertook to build an offshore pipeline between the Longtom Gas Field and the Patricia Baleen Gas Field in Bass Strait, Victoria for Nexus. 6 One of the subcontractors engaged by TDJV to work on the project was Trident. On 30 July 2007, TDJV and Trident entered into the subcontract referred to as the "Service Agreement". 7 The Service Agreement records that TDJV had been engaged to develop and perform engineering, procurement and installation services of the sub-sea pipeline systems for the Nexus Longtom Gas Project and that the contractor, TDJV, required the services of Trident in support of the project. 8 The Service Agreement contained among other clauses, the following clauses. The reference to the "Supplier" in these clauses is a reference to Trident, and the reference to the "Contractor" is a reference to TDJV. 1) SCOPE OF SERVICES The Scope of Services to be provided under this Service Agreement shall be as defined in Schedule 1 hereto. 2) PRICE SCHEDULE For the provision of the Services as described in the scope of services, supplier shall be compensated by Contractor at rates agreed prior to the commencement of the services. 3) MAXIMUM AMOUNT OF THE SERVICE AGREEMENT The maximum value of this Service Agreement shall be determined to accommodate the scope of services which is yet to be defined. 4) PRICES All prices and rates payable under this Service Agreement shall be on a cost recoverable basis only and be supported by approved documentation. Costs for labour shall be fully documented for each position utilising the personnel authorisation form (PAF) which shall be approved by the assigned Project Manager. 5) SCHEDULE OF SERVICES The Services shall be performed in accordance with the schedule agreed with Contractor's Representative for the duration of the Project. Such schedule shall be varied from time to time to suit the progress of the Project. The commencement date of the services shall be the 1st February 2007. … 7) PAYMENT TERMS Payment shall be effected upon submission and acceptance of Supplier's Invoice. With the exception of payment for the offshore crews, payment shall be by electronic funds transfer and shall be effected within 14 days from the date of receipt of correct invoice(s). Funding for the engagement, mobilization and employment of the offshore crews shall be on a neutral funding basis with a cash flow and payment schedule pre-agreed between the Contractor and Supplier. Contractor shall negotiate and secure a union agreement for the Project which shall form the basis of the rates for the offshore crews. Expenses Incurred by the Supplier shall only be reimbursed when fully documented and approved by the Project Manager. … 9) INVOICES Invoice(s) shall be addressed and submitted as indicated below. Invoice(s) shall be submitted in English and shall be laid out in the same manner and shall include the Service Agreement No and Project Name. Invoice Address: TDJV 125A Royal Street East Perth WA 6004 Australia Attention: Accounts Payable Invoice(s) must be submitted as follows: