Collgar loses final attempt to claim damages

The company behind one of the state’s largest wind farms has lost a last ditch attempt to claim damages for faulty works conducted a decade ago, after the court refused to correct an error that led it to sue the wrong entity.

In 2009, Collgar Wind Farm, owned by superannuation fund Rest, engaged Melbourne-based wind turbine maker Vestas-Australian to provide 111 turbine generators for its $750 million Merredin-based park, with works running from June 2010 until October 2011.

Vestas had retained Robin Johnson Engineering, now known as Australian Contracting Services, as a subcontractor to complete electrical cable installation and termination work.

But in February 2015, Collgar alleges there were two electrical failures in the cables feeding two transformers.

That same year, Robin Johnson Engineering rebranded to RJE Global; a company of which Australian Contracting Services is a subsidiary.

In February 2021, Collgar issued a writ claiming damages against South Australia-based engineering company RJE Global, mistakenly claiming it was the entity behind the works and that the failures occurred because of its negligence.

Collgar told the court that in preparing the writ, its solicitor had relied on reports that allegedly identified the responsible company as 'RJE', with a company search identifying RJE Global as the entity.

But RJE Global’s in-house counsel told Collgar it could not have been the entity responsible for the works as it had not been incorporated until five years later.

Collgar immediately took steps to correct the error, seeking to amend the name of the defendant on the legal action from RJE Global to Australian Contracting Services.

Supreme Court justice Jeremy Curthoys questioned why it took Collgar six years to launch the legal action and its failure to make proper inquiries.

He said that if the amendment was not approved, Collgar's action against Australian Contracting Services would be barred by the Limitation Act, which sets out the timeframes within which legal action may be taken.

He argued it was not in the interests of justice to allow the amendment, given the limitation period had expired.

“It is clear from RJE Global's submissions that Australian Contracting Services intends to rely upon the limitation defence,” justice Curthoys said.

“It is not merely theoretical that the limitation defence will be pleaded. 

“To allow the matter to proceed further would be a futile and inefficient use of the limited resources of the parties and the court.”

Justice Curthoys dismissed the action and Collgar’s application to amend it, ordering the company to pay RJE Global’s legal costs and leaving few options for the company to pursue action.