Veolia Environmental Services (Australia) Pty Ltd v Kwinana WTE Project Co Pty Ltd in its capacity as trustee of the Kwinana WTE Project Trust

Category: Procedural rulings

Parties: Veolia Environmental Services (Australia) Pty Ltd (Plaintiff)
Kwinana WTE Project Co Pty Ltd in its capacity as trustee of the Kwinana WTE Project Trust (Defendant)

Representation: Counsel:
P Braham SC with M Sheldon (Plaintiff)
D Miller SC with J Adamopoulos (Defendant)
Solicitors:
MinterEllison (Plaintiff)
Gilbert + Tobin (Defendant)

File Number(s): 2025/00255758

Publication restriction: Nil

JUDGMENT

1. The question for determination is whether these proceedings should be transferred to the Supreme Court of Western Australia under section 5(2) of the Jurisdiction of Courts (Cross-vesting Act) 1987 (NSW).

2. Kwinana WTE Project Co Pty Ltd (Project Co) owns a waste-to-energy facility in Kwinana, an outer area of Perth. It engaged Veolia Environmental Services (Australia) Pty Ltd to provide services in relation to that facility by an operations and maintenance contract (O&M Contract) dated 16 October 2018.

3. Veolia alleges that Project Co repudiated the O&M Contract by purporting to terminate when it did not have a right to do so. Veolia seeks loss of bargain damages for the remainder of the contract term — some 21 years. It says that its revenue less costs for the remainder of the term would have been $224.3 million.

4. The right of termination Project Co purported to exercise was that contained in clause 37.11(a) of the O&M Contract, which entitled Project Co to terminate the contract immediately on notice to Veolia, relevantly, where the “PPA” is terminated. The “PPA” is defined as “the power purchase agreement entered into between Project Co and the Buyer”. The “Buyer” is defined with a degree of circularity to mean “Project Co’s counterparty under the PPA”.

5. In April 2021, Project Co entered into a “bilateral trade agreement” with Shell Energy Retail Pty Ltd, which, in effect, allowed for agreements for the sale and purchase of energy produced by the facility. Project Co’s position is that the Shell Contract was the PPA for the purpose of the O&M Contract. It terminated that agreement on 12 February 2025, and shortly afterwards gave Veolia notice that it was terminating the O&M Contract. Veolia disputes that the Shell Contract was the PPA for the purpose of the O&M Contract, such that the termination of that agreement gave Project Co no express right to terminate the O&M Contract.

6. Project Co has applied for the proceedings to be transferred to the Supreme Court of Western Australia. Its notice of motion also sought an order that the proceedings be stayed pending compliance with a dispute resolution procedure under the O&M Contract, but that relief is no longer sought.

Relevant principles

7. The relevant principles are not in dispute.

8. Section 5(2)(b)(iii) of the Cross-vesting Act requires the Court to ensure that the proceedings are heard in the forum dictated by the interests of justice: Bogan v Estate of Peter John Smedley [2025] HCA 7 at [69] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).

9. In identifying that more appropriate forum, relevant considerations include the cost and efficiency of proceedings in the respective jurisdictions and “connecting factors” such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law governing the relevant transaction: BHP Billiton Ltd v Schultz (2004) 221 CLR 400 (Schultz) at [18] (Gleeson CJ, McHugh and Heydon JJ).

10. The interests of justice are not the same as the interests of one party, and no particular significance attends the plaintiff’s choice of forum: see Schultz at [15]; Comino v Kremetis (2023) 110 NSWLR 224 at [70] (Chen J); Valceski v Valceski (2007) 70 NSWLR 36 (Valceski) at [70] (Brereton J).

11. If “it appears” that one court is more appropriate than the other, however so slightly, then a transfer to the more appropriate court is mandatory; no question of discretion arises: Valceski at [70].

Consideration

12. Project Co refers to a number of reasons which it says show that the Supreme Court of Western Australia is the more appropriate forum to hear this dispute. Some are neutral, like the fact that the relevant instruments the subject of these proceedings are governed by the law of Western Australia and the parties to those instruments submitted to the non-exclusive jurisdiction of the courts in that state.

13. It places most reliance on the facts that the facility is based in Western Australia and that evidence may be led from personnel based in Western Australia, and experts who are familiar with local market conditions.

14. Project Co also relies on the fact that, in proceedings between it and another contractor in relation to the same facility, Stevenson J ordered that the proceedings be transferred to the Supreme Court of Western Australia: Acciona Industrial Australia Pty Ltd v Kwinana WTE Project Co Pty Ltd [2021] NSWSC 1527.

15. Veolia points to factors said to negative or neutralise a connection with Western Australia, rather than any factors demonstrating a substantive connection with New South Wales.

16. In particular, it frames the case as a dispute about the construction of the O&M Contract. On that basis, the location and condition of the facility is not material, as it is common ground that it has not been completed and no view will be sought.

17. Veolia accepts that there may be some factual issues concerning the formation of the contract and matters relevant to the implied terms that are pleaded, but there does not appear to be any significant connection between those persons who might give evidence concerning the formation of the contract and Western Australia. Further, to the extent that Shell Energy gives evidence, it is based in Queensland. In terms of experts, Veolia has briefed a quantum expert based in Sydney. Project Co expects to lead some expert evidence about a particular Western Australian meaning of some of the terms in the O&M Contract. However, it is not uncommon in any case for a witness, particularly an expert witness, to be out of the jurisdiction when the case is heard.

18. A further consideration favouring the matter remaining in this List is the fact that the parties have, before and after the dispute commenced, engaged lawyers in Sydney, and there would be cost considerations of the dispute being determined in Western Australia. While that matter may be a neutral factor in some cases (see eg Kodak (Australasia) Pty Ltd v AWA Davis Pty Limited [2006] VSC 111 (Hollingworth J)), here I consider it is relevant to the consideration of what is the most advantageous forum for the parties, because there are very few other objective factors at play.

19. I accept that Veolia determined to commence the proceedings in this Court, including because of the location of lawyers engaged and also the efficiencies for which this List is known.

20. Even so, the question under section 5(2)(b)(iii) is whether, without giving “any specific emphasis in favour of the choice of forum made by the plaintiff”, another court is more appropriate: Schultz at [77] (Gummow J). A plaintiff’s initial choice may assume significance if both courts are equally appropriate, but if one is more appropriate than the other, the matter must be transferred: Valceski at [70].

21. In my opinion, it is not apparent that the Supreme Court of Western Australia is the more appropriate forum, at least at this stage. This is particularly so because to date, Project Co has not identified clearly that witnesses from Western Australia will give evidence.

22. I do accept Veolia’s submission that the question of transfer could be revisited in future, “if it becomes the case … that the witnesses in the case are all or substantially located in Western Australia”. However, currently, I am not satisfied that the matter ought to be transferred.

Conclusion

23. For those reasons, I make the following orders:

24. Defendant’s notice of motion filed on 30 July 2025 is dismissed.

25. Defendant to pay the plaintiff’s costs of the motion as agreed or assessed.

26. Parties to provide timetabling orders to my Associate by 5pm Monday 20 October 2025.

27. Grant liberty to apply on 2 days’ notice.

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