ALVARO -v- AMARAL [No 2] [2013] WASCA 232

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 232
Court:	THE COURT OF APPEAL (WA)	Published:	10/10/2013
Case No:	CACV:130/2012	Heard:	14 AUGUST 2013
Coram:	MARTIN CJ PULLIN JA NEWNES JA	Delivered:	14/08/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	ROCCO DOMENIC ALVARO ROSS AMARAL CHARMAINE AMARAL DAVID SCOTT ELLIS
Catchwords:	Appeal Whether leave should have been granted to appeal against an arbitrator's award Turns on own facts
Legislation:	Commercial Arbitration Act 1985 (WA), s 38
Case References:	Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 D & Z Constructions Pty Ltd v IHI Corporation [2013] WASC 265 Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175 House v The King [1936] HCA 40 ; (1936) 55 CLR 499 Nyoni v Patterson [2011] WASCA 215 Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALVARO -v- AMARAL [No 2] [2013] WASCA 232 CORAM : MARTIN CJ

PULLIN JA

NEWNES JA

HEARD : 14 AUGUST 2013 DELIVERED : 14 AUGUST 2013 PUBLISHED : 10 OCTOBER 2013 FILE NO/S : CACV 130 of 2012 BETWEEN : ROCCO DOMENIC ALVARO

Appellant

AND

ROSS AMARAL

CHARMAINE AMARAL

First Respondents

DAVID SCOTT ELLIS

Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : ARB 7 of 2012

Catchwords:

Appeal - Whether leave should have been granted to appeal against an arbitrator's award - Turns on own facts

Legislation:

Commercial Arbitration Act 1985 (WA), s 38

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D J Garnsworthy

First Respondents : Mr A M Prime

Second Respondent : No appearance

Solicitors:

Appellant : David Garnsworthy

First Respondents : MDS Legal

Second Respondent : No appearance

Case(s) referred to in judgment(s):

Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226
D & Z Constructions Pty Ltd v IHI Corporation [2013] WASC 265
Eslea Holdings Ltd v Butts (1986) 6 NSWLR 175
House v The King [1936] HCA 40 ; (1936) 55 CLR 499
Nyoni v Patterson [2011] WASCA 215
Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239
1 REASONS OF THE COURT: On 14 August 2013 this appeal was dismissed with reasons to follow. These are those reasons.

2 The appeal was against the order of Master Sanderson dated 25 October 2012, which dismissed the appellant's application, pursuant to s 38 of the Commercial Arbitration Act 1985 (WA), for leave to appeal against the partial award of the second respondent (arbitrator). The arbitrator's partial award primarily concerned whether he had jurisdiction to act as arbitrator and determine the dispute between the parties.

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.

Continue reading Alvaro v Amaral [No 2]

Details

AGLC: ALVARO -v- AMARAL [No 2] [2013] WASCA 232
Case: [2013] WASCA 232
Decision Date: 10 OCTOBER 2013

CaseChat Overview and Summary

The case of Alvaro v Amaral [No 2] involved the appellant, Alvaro, seeking leave to appeal against an arbitrator's award which had been made in a dispute between Alvaro and the respondent, Amaral. The dispute related to a contract for the sale of shares in a company. The High Court of Australia was tasked with determining whether leave should have been granted to appeal against the arbitrator's award, focusing on the specific facts of the case.

The central legal issue before the court was whether the appeal should proceed, considering the discretionary nature of granting leave to appeal. The court had to consider whether the appeal was frivolous or vexatious, whether the appeal raised an arguable question of law of general public importance, and whether there were other factors that warranted granting leave. The court needed to balance the importance of the issues raised against the principle of finality in arbitral awards.

The court determined that the appeal was not frivolous or vexatious, and while the question of law raised was of general public importance, the facts of the case did not warrant the appeal being heard. The court found that the appeal raised a point of law that could be of general importance, but the specific circumstances of the case did not support the granting of leave. Ultimately, the appeal was dismissed, and the arbitrator's award remained binding.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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