Venue chosen partly due to lawyers' location, jurisdiction's known efficiencies
In a case involving entitlement to terminate a contract, the New South Wales Supreme Court refused to transfer the proceedings to the Supreme Court of Western Australia under s 5(2) of the Jurisdiction of Courts (Cross-vesting Act) 1987 (NSW).
In Veolia Environmental Services (Australia) Pty Ltd v Kwinana WTE Project Co Pty Ltd in its capacity as trustee of the Kwinana WTE Project Trust, [2025] NSWSC 1225, the defendant owned a waste-to-energy facility in Kwinana, an outer area of Perth.
The proceedings that followed referred to the following agreements:
Before the court, the plaintiff requested damages for the loss of bargain for the rest of its contractual term – about 21 years – with the defendant.
The plaintiff alleged that the defendant repudiated the O&M contract by purporting to terminate it under clause 37.11(a), which entitled the defendant to immediate termination upon notice to the plaintiff in the event of termination of the PPA.
The plaintiff argued that the defendant had no right to terminate the O&M contract. The plaintiff claimed that its revenue, minus costs, for the remainder of the contractual term would have amounted to $224.3m.
On the other hand, the defendant’s position was that the Shell contract was a power purchase agreement (PPA) for the purpose of the O&M contract, such that terminating the Shell contract entitled the defendant to terminate the O&M contract.
The defendant alleged that it terminated the Shell contract on 12 February 2025 and notified the plaintiff that it was terminating the O&M contract shortly afterward.
The plaintiff disagreed that the Shell contract was the PPA for the purpose of the O&M contract.
By notice of motion filed on 30 July 2025, the defendant applied to transfer the proceedings to the WA Supreme Court.
The Supreme Court of New South Wales dismissed the defendant’s notice of motion and ordered it to pay the plaintiff’s motion costs as agreed or assessed.
The NSW court was not satisfied that the proceedings should be subject to a transfer. The NSW court did not deem it apparent that the WA Supreme Court would be a more appropriate forum at this stage.
The NSW court acknowledged the plaintiff’s determination to initiate the proceedings before this jurisdiction, given the location of the lawyers engaged and the efficiencies for which this Commercial List was known.
The NSW court noted that determining the dispute in Western Australia would involve cost considerations, as the parties retained lawyers in Sydney.
The NSW court saw no apparent significant connection between Western Australia and the individuals who might give evidence concerning the relevant contract’s formation. The court noted that Shell Energy was in Queensland.
Regarding expert witnesses, the NSW court noted that:
The NSW court concluded that the relevant considerations in this case favoured maintaining the matter in this Commercial List. The NSW court accepted that it could revisit the issue of a transfer in future if all or most of the witnesses in the matter were in Western Australia.
