ALVARO -v- TEMPLE [2009] WASC 205 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2009] WASC 205 (S)
Case No:	ARB:9/2008	Heard:	30 APRIL & 9 JUNE 2009 & ON THE PAPERS
Coram:	MURPHY J	Delivered:	29/07/09
Supplementary Delivered:	21/08/09
No of pages:	6	Judgment Part:	1 of 1
Result:	No order as to costs
Category:	B
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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

CITATION : ALVARO -v- TEMPLE [2009] WASC 205 (S) CORAM : MURPHY J HEARD : 30 APRIL & 9 JUNE 2009 & ON THE PAPERS DELIVERED : 29 JULY 2009 SUPPLEMENTARY
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.

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 Temple

Details

AGLC: Alvaro v Temple [2009] WASC 205 (S)
Case: [2009] WASC 205 (S)
Decision Date: 29 JULY 2009

CaseChat Overview and Summary

The case of Alvaro v Temple involved a dispute between the plaintiff and the defendant regarding costs incurred in relation to leave to appeal and an appeal under section 38 of the Commercial Arbitration Act 1985 (WA), as well as an application under section 42 of the same Act. The court was asked to determine whether the plaintiff was entitled to recover these costs from the defendant. The plaintiff had sought leave to appeal and an appeal, and also made an application under section 42, all of which were ultimately unsuccessful.

The legal issues before the court were whether the plaintiff could recover the costs associated with the unsuccessful leave to appeal, appeal, and section 42 application. The court needed to consider the provisions of the Commercial Arbitration Act 1985 (WA) to determine if the plaintiff's entitlement to costs was limited to those incurred in the original arbitration, or if it extended to the subsequent proceedings. Additionally, the court had to assess the fairness of the plaintiff's request for costs, considering the unsuccessful nature of the proceedings.

The court concluded that the plaintiff was not entitled to recover the costs in question. The reasoning behind this decision was based on the interpretation of the relevant sections of the Commercial Arbitration Act 1985 (WA). The court held that the provisions for costs were confined to the arbitration itself and did not extend to the subsequent proceedings. Furthermore, the court found that it was not appropriate to award costs in light of the unsuccessful nature of the plaintiff's leave to appeal, appeal, and section 42 application. Consequently, the court dismissed the plaintiff's application for costs.

There were no orders as to costs made in this case. The plaintiff was not entitled to recover the costs associated with the unsuccessful leave to appeal, appeal, and section 42 application, as determined by the court. The decision highlights the importance of understanding the scope of costs provisions under the Commercial Arbitration Act 1985 (WA) and the need for caution when seeking recovery of costs in unsuccessful proceedings.

Orders

Orders of the court

No order as to costs

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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