Abigroup Contractors Pty Ltd v Transfield Pty Ltd - [1998] VSC 103

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION

Not Restricted

No. 6620 of 1998

ABIGROUP CONTRACTORS PTY LTD Plaintiff
(ACN 000 201 516)
v.

TRANSFIELD PTY LIMITED First Defendant
(ACN 00 854 688)
AND

OBAYASHI CORPORATION Second Defendant
(ARBN 002 932 756) AND ORS

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JUDGE: Gillard J.
WHERE HELD: Melbourne
DATE OF HEARING: 11 September 1998
DATE OF JUDGMENT: 16 October 1998

CASE MAY BE CITED AS:

Abigroup Contractors Pty Ltd v. Transfield Pty Limited and Obayashi Corporation and Ors
MEDIA NEUTRAL CITATION: [1998] VSC 103

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Building contract - Arbitration - Stay sought of court proceeding - Whether binding contract in law - Pleaded as such - Whether plaintiff bound by pleading - International arbitration - Commonwealth International Arbitration Act not excluded by parties - Section 53 of Commercial Arbitration Act - Discretionary consideration.

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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr. J.G. DIGBY, Q.C. with Deacons Graham & James
MR J.B. DAVIS
For the Defendants Mr. B. SHAW, Q.C. with Minter Ellison
Mr. F. TIERNAN

HIS HONOUR:

This is an application by summons in a proceeding commenced by writ whereby the first and second defendants seek an order that the causes of action brought by the plaintiff against the first and second defendants be stayed on the ground that there is an arbitration agreement between the parties.
The applicants rely upon s.7 of the International Arbitration Act 1974 (Commonwealth) and in the alternative on s.53 of the Commercial Arbitration Act 1984 (Victoria).
Parties
The plaintiff Abigroup Contractors Pty. Ltd. carries on the business of construction contractor. The first and second defendants Transfield Pty. Ltd. and Obayashi Corporation also carry on the business, inter alia, of construction.
With respect to the issues raised in the proceeding, at all relevant times the first and second defendants carried on the business of designers, project managers and contractors in the construction of the Melbourne Citylink project as joint venturers pursuant to an unincorporated joint venture known as the Transfield Obayashi Joint Venture ("TOJV"). Part of the works included works at Southbank known as the Southbank Interchange Works ("the works").
Background Facts
On 24 September 1996 the first and second defendants ("TOJV") invited the plaintiff to submit a tender for the works.
In February 1997 the plaintiff entered into a form of sub-contract with TOJV to carry out the Southbank works for a lump sum of M.$14.5.
The plaintiff commenced the works in early March 1997 and it is anticipated that it will complete the works by January 1999.
A dispute has arisen between the plaintiff and the first and second defendants and others in relation to the works and on 24 July 1998 the plaintiff issued a writ in this Court against eight named defendants.
The plaintiff claims against TOJV damages in respect of a number of areas of the works.
In support of the application TOJV filed two affidavits.
The matter came on before me at a directions hearing on 12 August 1998 and the plaintiff informed the Court that it was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] VSC 103
Decision Date: 16 October 1998

CaseChat Overview and Summary

Abigroup Contractors Pty Ltd initiated legal action against Transfield Pty Ltd in a dispute arising from a building contract. The court was tasked with determining whether the contract was binding in law and if the plaintiff was constrained by its pleadings. Additionally, the court needed to decide if the parties had effectively excluded the application of the Commonwealth International Arbitration Act, and whether the court had the discretion to stay the proceedings in light of section 53 of the Commercial Arbitration Act.

The court assessed the nature of the contract and concluded that it was indeed binding in law. It further held that the plaintiff was bound by its pleadings, which acknowledged the contract's validity. The court found that the parties had not excluded the application of the Commonwealth International Arbitration Act, thereby making international arbitration a viable option. The court considered section 53 of the Commercial Arbitration Act, which grants discretionary power to stay court proceedings in favour of arbitration. After weighing the circumstances, the court exercised its discretion and decided to stay the court proceedings in favour of arbitration.

The court's decision was to stay the court proceedings, allowing the dispute to be resolved through arbitration. The court's rationale was grounded in the binding nature of the contract, the plaintiff's commitment to its pleadings, and the availability of international arbitration under the Commonwealth International Arbitration Act. The court's discretionary consideration was influenced by section 53 of the Commercial Arbitration Act, which provided the basis for the court's decision to stay the proceedings.

Orders