WICET is seeking to recover funds paid to the MMM (Monadelphous Muhibbah Marine) joint venture under two infrastructure contracts completed during development of the export terminal.

It says MMM has chosen a litigious path for resolution of its claims, starting with three Building and Construction Industry Payment Agency adjudication applications since June 2014 in which it claimed additional payments of $440 million, almost double the original contract sums, and was subsequently only awarded $81 million.

WICET has paid the amounts awarded to MMM under the BCIPA adjudications, and all amounts previously certified as owing by WICET, however given the BCIPA payments are interim only the it wants to seek a final determination of the adjudicated claims in its Supreme Court proceedings.

It says MMM’s claims have been difficult to validate, with adjudicator describing MMM’s most recent payment claim as “both confused and confusing”.

The claim could not be understood at a rudimentary level and the documentation in support of each claim was hard to understand, the BCIPA adjudicator reported, with the documentation described as sometimes being incorrect or incomplete, or both.

WICET says it has been unable to properly assess MMM's claims as that JV has failed to provide the evidence and substantiation requested.

“In fact since October last year, despite repeated requests, MMM has continually refused to provide additional information in support of its claims. WICET has recently been forced to apply to the Courts, at significant expense, to prompt this request,” WICET said in a statement.

WICET also confirmed that it has called on bank guarantees issued by MMM amounting to some $38 million.

MMM has made a number of unsuccessful attempts in the courts to prevent WICET exercising its contractual rights to call on these guarantees, WICET said.

MMM began Supreme Court proceedings in October last year to prevent WICET calling on the bank guarantees, however that action failed.

MMM then began new proceedings to recover an estimated $32 million of the bank guarantee funds, however last week the Supreme Court rejected MMM’s claim, confirming that WICET is entitled to retain the proceeds of the guarantees.

Monadelphous failed to acknowledge this decision in its June 15 statement to the Australian Securities Exchange despite being aware of the outcome, WICET said.

WICET has also encountered difficulties resolving claims by Sinostruct, a Monadelphous company which provided fabrication works at the WICET facility, and it has called on almost $7 million of bank guarantees the terminal JV says it is owed, a fact Monadelphous also failed to make public.

“WICET will continue to manage the project construction schedule and costs closely in accordance with contract entitlements,” the group said.

The WICET project was originally expected to be completed in the first quarter of 2014 but only made its first shipment of 73,000 tonnes of coal in April.

The JV says it has not certified final completion of the offshore plant and infrastructure, so MMM has ongoing obligations under both contracts to rectify any defects encountered by WICET during the defects liability periods.

WICET is a holding company representing a mix of major and minor coal miners comprising Glencore, New Hope Corporation, Aquila Resources, Wesfarmers, Caledon Coal, Cockatoo Coal and Yancoal.