The Queensland Supreme Court restrained a contractor from advancing a claim that it could have, but had not, raised in a prior adjudication application under the Building and Construction Industry Payments Act 2004 (Qld) (BCIPA) on the basis of extended 'Anshun' estoppel (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589).
Wiggins Island Coal Export Terminal Pty Ltd (principal) and Monadelphous Engineering Pty Ltd and Muhibbah Construction Pty Ltd trading as Monadelphous Muhibbah Marine (contractor) entered into a contract for the construction of offshore plant and infrastructure for a coal export terminal at the Port of Gladstone. The project was affected by delay to the construction of the jetty which was connected to the wharf (jetty road delay).
On 25 August 2014, the contractor submitted Payment Claim 34, which included three claims relating to the jetty road delay. The contractor did not pursue one of the jetty road delay claims in its corresponding adjudication application under BCIPA.
On 31 July 2015, the contractor submitted Payment Claim 38, which re-agitated the jetty road delay claim that it had not pursued in the adjudication relating to Payment Claim 34, albeit with more precise calculations, amounting to $30.7 million for increased labour, plant and costs. That claim became the subject of a further adjudication application.
The principal applied for an injunction to restrain the contractor from pursuing various claims in the adjudication application on a number of grounds, including that it was unreasonable not to have included the re-agitated jetty road delay claim as part of the earlier adjudication application, and 'Anshun' estoppel should preclude the contractor from including that claim in its further adjudication application.
The Queensland Supreme Court granted an injunction on grounds of 'Anshun' estoppel, preventing the contractor from pursuing the re-agitated jetty road delay claim, in circumstances where it was unreasonable for the contractor not to have pursued the claim in the earlier adjudication application with the other related claims.
Jackson J said:
'once it is accepted that there is a role for extended or Anshun estoppel based on a concept of unreasonableness, there must be some difficult choices as to whether one case or another raises the estoppel.'. He decided that in this case it was unreasonable for the contractor to re-agitate the claim as in this case the claims 'are and " were always", claims where to allow costs for one claim would affect the other.'.