Alvaro v Temple
[2009] WASC 205 (S)
•29 JULY 2009
ALVARO -v- TEMPLE [2009] WASC 205 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASC 205 (S) | |
| Case No: | ARB:9/2008 | 30 APRIL & 9 JUNE 2009 & ON THE PAPERS | |
| Coram: | MURPHY J | 29/07/09 | |
| 21/08/09 | |||
| 6 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs | ||
| B | |||
| PDF Version |
| Parties: | ROCCO DOMENIC ALVARO MARK WILLIAM ALEXANDER TEMPLE ANDREA ELLEN TEMPLE ADRIAN B GOOLD |
Catchwords: | Order for costs Costs in relation to leave to appeal and to appeal under s 38 of the Commercial Arbitration Act 1985 (WA) and in relation to an application under s 42 of the Act |
Legislation: | Commercial Arbitration Act 1985 (WA) |
Case References: | Alvaro v Temple [2009] WASC 205 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
DECISION : 21 AUGUST 2009 FILE NO/S : ARB 9 of 2008 BETWEEN : ROCCO DOMENIC ALVARO
- Applicant
AND
MARK WILLIAM ALEXANDER TEMPLE
ANDREA ELLEN TEMPLE
First Respondents
ADRIAN B GOOLD
Second Respondent
Catchwords:
Order for costs - Costs in relation to leave to appeal and to appeal under s 38 of the Commercial Arbitration Act 1985 (WA) and in relation to an application under s 42 of the Act
Legislation:
Commercial Arbitration Act 1985 (WA)
(Page 2)
Result:
No order as to costs
Category: B
Representation:
Counsel:
Applicant : Mr B G Grubb
First Respondents : Mr S D Pentony
Second Respondent : No appearance
Solicitors:
Applicant : Metaxas & Hager
First Respondents : Lavan Legal
Second Respondent : No appearance
Case(s) referred to in judgment(s):
Alvaro v Temple [2009] WASC 205
(Page 3)
1 MURPHY J: The appellant and first respondents have agreed a minute of orders to give substantive effect to the reasons for judgment delivered in these proceedings on 29 July 2009: Alvaro v Temple [2009] WASC 205. A dispute remains, however, as to the appropriate order for costs. The appellant and first respondents each seek an order for costs in their favour. These reasons should be read in the context of the earlier reasons. In these reasons the appellant is the 'Builder' referred to in the earlier reasons and the first respondents are the 'Owners'.
2 The appellant's notice of originating motion, as originally filed, did not seek in the prayer for relief the removal of the arbitrator under s 44 of the Commercial Arbitration Act 1985 (WA) (the Act), although there was a reference to s 44 of the Act in the title page of the motion and there was a ground referring to removal. The original motion contained allegations of apprehended bias against the arbitrator.
3 The appellant filed a minute of proposed amended notice of originating motion dated 31 March 2009. This minute deleted allegations of apprehended bias against the arbitrator and made certain other amendments.
4 The matter was listed for hearing on 30 April 2009. At the commencement of the hearing, the appellant sought leave to amend its motion in terms of the minute dated 31 March 2009. Again, the minute did not, in its prayer for relief, seek an order for removal of the arbitrator under s 44 of the Act. Notwithstanding this, counsel for the appellant informed the court, in effect, that the principal difference between the appellant and the first respondents in these proceedings was that the appellant contended that the arbitrator should be removed.
5 Following some preliminary debate, counsel for the appellant withdrew the application to amend and proposed, in effect, that the appellant be given leave to file a further minute of amended motion and that the matter be adjourned to a hearing on another date. The first respondents agreed to that course on the basis that the appellant paid their costs thrown away by reason of the adjournment. Accordingly, on 30 April 2009, the matter was adjourned to a hearing on 9 June 2009. Programming orders were made for the filing of a fresh minute of amended motion and submissions. It was also ordered that the appellant pay the first respondents' costs of the hearing on 30 April 2009 thrown away by reason of the adjournment.
(Page 4)
6 A further minute was filed by the appellant on 7 May 2009, in which the appellant included, in the prayer for relief, an order that the arbitrator be removed under s 44 of the Act. Other amendments clarifying aspects of the appellants' grounds were also made.
7 At the hearing on 9 June 2009 the appellant proposed some further amendments to the minute dated 7 May 2009. Leave was then given to file an amended originating motion, capturing the further amendments. The final version of the amended motion, filed by the appellant, was dated 9 June 2009. During the course of the hearing the appellant abandoned par 8 of the amended motion.
8 At the hearing on 9 June 2009, the first respondents' counsel formally conceded that in failing to provide reasons, the arbitrator had made manifest errors of law on the face of the award for the purposes of s 38(5)(b)(i) of the Act, that the errors could substantially affect the rights of the appellant for the purposes of s 38(5)(a) of the Act, and that the matter should be remitted to the arbitrator for the provision of further reasons. There had not been a formal concession made to the court prior to this time. However, in an affidavit sworn 10 August 2009, Mr Pentony, solicitor for the first respondents, has deposed that in correspondence dated 28 April 2009, prior to the hearing on 30 April 2009, he had proposed to the solicitor for the appellant that the parties agree orders remitting the matter to the arbitrator for the provision of further reasons in respect of the matters complained of by the appellant in its minute of amended motion dated 31 March 2009. That proposal was rejected by the appellant.
9 In their respective contentions as to appropriate costs orders, counsel for the appellant and counsel for the first respondents have raised for consideration whether it was reasonable for the appellant to proceed to a hearing in circumstances where the first respondents had proposed consent orders for remitter on 28 April 2009.
10 It is accordingly necessary to consider more carefully the orders proposed by the first respondent on 28 April 2009 and to compare those orders with the final outcome of the proceedings. First, the proposed orders were for remitter to the same arbitrator. As to this, the appellant's primary contention was that the award should be set aside in its entirety and that the arbitrator should be removed. Accordingly the appellant ultimately failed in his primary contention. The final outcome was congruent with the first respondents' proposed orders on this point. Secondly, the proposed orders in effect acknowledged the need for further
(Page 5)
- reasons to be provided by the arbitrator in relation to the matters the subject of the first five grounds raised by the appellant in these proceedings. That accorded, to a significant extent, with the relief ultimately obtained by the appellant in respect of those grounds. However, in relation to the first ground, the appellant had raised, and ultimately succeeded on, an important point of technical misconduct, as a result of which the award was set aside in part, although not in whole (as the appellant had sought). Thirdly, the proposed orders contemplated that the arbitrator provide further reasons in relation to his findings that the first respondents had suffered loss and damage. Again, ultimately, it was held that the arbitrator's findings constituted technical misconduct in respect of that matter and the award was set aside in part. Fourthly, the proposed orders provided that the arbitrator give further reasons in relation to the arbitrator's findings concerning the absence of oral terms of the contract, and the appellant's claim for declaratory relief. The appellant contended by his amended motion, and at the hearing, that these matters involved arbitral misconduct and the appellant relied on them as partly justifying the application to remove the arbitrator. The appellant failed in those arguments.
11 Accordingly, the proposed orders did not satisfactorily address the difficulties with the award in respect of two significant issues on which the appellant ultimately had the award set aside in part. It was not unreasonable for the appellant not to accept the proposed orders with respect to those two issues. On the other hand, it was not reasonable to dismiss the proposed orders out of hand, on the basis that the appellant wanted the whole of the award to be set aside, and the arbitrator removed.
12 Further, it is to be noted that in accordance with its amended motion dated 9 June 2009, at the hearing on 9 June 2009, the appellant raised in substance nine additional issues beyond those effectively conceded by the first respondents at the hearing. They appeared in grounds 1(2), 2(2), 4(2), 6, 7(1) and (2), 7(3), 8, 9(1) and (2), and 9(3) of the amended motion dated 9 June 2009. The sixth ground was significant as it raised for determination whether the arbitrator should be removed. Its potential success, to a not inconsiderable degree, depended on the extent to which the appellant could establish error or misconduct with reference to the other grounds. The appellant succeeded in respect of two of those additional issues (grounds 1(2) and 7(3)) and failed in respect of the balance of them. See Alvaro v Temple [76] - [77], [78] - [80], [81], [82], [84], [85], [86] and [87] - [88]. As I have said, one ground (ground 8), was also abandoned by the appellant.
(Page 6)
13 In all these circumstances, and taking everything into account, in my view it is appropriate, and substantial justice will be done, if the appellant and the first respondents bear their own respective costs. I will order that there be no order as to costs, including reserved costs.
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