Court challenge: ‘Sydney could end up with two fish markets’

The Sydney Fish Market is taking legal action against the NSW government and construction giant Multiplex to obtain documents related to its $836 million new premises, claiming in an escalating dispute that it may be forced to operate two competing fish markets side by side if its tenants refuse to move from their current site.

The taxpayer-funded new fish market under construction at the head of Blackwattle Bay is expected to open in October next year – a year late – and operators are talking to celebrity chef Luke Nguyen and hatted restaurateur Junda Khoo about being anchor tenants.

An artist’s impression of the new Sydney Fish Market.

The projected cost of the construction has ballooned from an initial estimate of $250 million in 2017 to $836 million costed in the latest budget papers.

The Herald revealed in March that a dispute over the design of the building had left the Sydney Fish Market management sandwiched between the NSW government and their subtenants, who operate wholesale and retail outlets at the existing premises.

The subtenants claim the new site is not fit for purpose and only two of the 38 have agreed to surrender their current leases and sign a new contract.

It has been revealed that the Sydney Fish Market sought to obtain from Infrastructure NSW last year documents related to its contract with Multiplex for the construction of the new site, including meeting minutes, emails and reports. It also requested any variation orders issued by Infrastructure NSW to Multiplex and any claims by Multiplex for delay costs or liquidated damages.

A construction worker looks towards the new Sydney Fish Market.Credit: Kate Geraghty

Infrastructure NSW denied the request and Sydney Fish Market has appealed to the NSW Civil and Administrative Tribunal for an order to release the information.

In a hearing on Wednesday, barrister Adam Searle, representing Sydney Fish Market, told the tribunal the reasons behind why the construction costs had “grown” so much was a matter of public interest.

The market wanted to know how the design had fallen so far short of what subtenants expected that they were refusing to sign up to the new lease, he said.

“If they don’t move, you have two fish markets operating, or the government may have to buy out tenants from the existing site,” Searle said. “How did it reach this point? Issues were raised iteratively over time and the fish market didn’t get satisfaction from those outcomes ... But that doesn’t remove the potency of their concerns.”

Subtenants have claimed that it is not possible to run a fish market over several levels, that the west-facing windows will reduce the shelf life of the seafood and that power to the site was inadequate.

Infrastructure NSW chief executive Tom Gellibrand has responded that the subtenants were involved in the design from its inception and claimed that they were positioning themselves to extract a better commercial deal.

But lawyers for Multiplex told the tribunal that the documents sought by Sydney Fish Market included information that was commercially sensitive and would be prejudicial to Multiplex if it was known by their competitors, including the complexity of building a structure over a body of water.

“That’s specific and commercially sensitive knowledge to Multiplex that would be detrimental to the value of that information of Multiplex’s business if competitors were to know about it,” barrister Laura Hilly said.

Infrastructure NSW project manager Greg Lin said disclosure of the documents would compromise its relationship with stakeholders such as subcontractors, members of the public and its construction partners, and compromise the way it conducted its negotiations.

Some of the documents contained “granular” information that had been obtained over a 12-month period, he said.

“The harm caused is those stakeholders using that information to our detriment when entering negotiations that we have to resolve,” Lin said.

Separately, Shooters Fishers Farmers MLC Mark Banasiak has asked through parliament for documents related to the construction, including progress reports and variations.

Some documents have been returned but the large majority have been caught by parliamentary privilege because they are claimed to be commercially sensitive.

Banasiak said he was concerned about the viability of the commercial fishing industry, which relied on a viable Sydney Fish Market.

“I suspect that things aren’t being built to what the original proposal was,” Banasiak said. “There may have been some mix-up between what was asked for and what was given to Multiplex, and that’s why things have gone pear-shaped.”

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