Baulderstone Hornibrook Engineering Pty Ltd v State Constructions Pty Ltd - [1993] SASC 4258

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE(1), MOHR(2) AND BOLLEN(3) JJ

CWDS
Costs - security for costs - Whether Supreme Court has jurisdiction to hear and determine an application for security for costs in arbitration proceedings under 5.47 of the Commercial Arbitration Act. Held: the words in 5.47 are sufficiently wide to give the court the power to make orders for security for costs - appeal allowed. Commercial Arbitration Act 1986 (SA) s 47 and Corporations Law 1990 s 1335. Alliance Petroleum Australia (NL) v Australian Gaslight Company (1983) 39 SASR 215; Imperial Leatherware v Macri and Marcellino (1991) 22 NSWLR 653 and Qantas Airways v Dillingham Corporation
(1985) 4 NSWLR 113, applied. Superannuation Fund v Leighton Contractors
(1990) 159 LSJS 223, distinguished.

HRNG ADELAIDE, 4 November 1993 #DATE 4:11:1993
Counsel for appellant:     Mr J M Wilkinson
Solicitors for appellant:    Cowell, Clarke
Counsel for respondent:     Mr G L Muecke
Solicitors for respondent: Andersons Barker Gosling

ORDER
Appeal allowed.

JUDGE1 LEGOE J This is an application for leave to appeal from an order made by a single judge of this court that the court has no jurisdiction to hear and determine an application for security for costs in arbitration proceedings. 2. The applicant is the defendant in certain arbitration proceedings. The respondent is the plaintiff in those proceedings. The dispute was referred to arbitration in 1992. There have been numerous preliminary conferences. On 7 December 1992 the applicant made application to this court for an order for security of costs pursuant to s.47 of the Commercial Arbitration Act and s.1335 of the Corporations Law. 3. That application was heard by a Master of this Court on 27 January 1993. Before the Master it was common ground between the parties that the court had jurisdiction pursuant to s.47. The Master refused to make an order for security of costs on the merits of the case and not on the grounds that he had no jurisdiction. 4. That decision was handed down on 3 February 1993. The applicant then appealed to a single judge of this court. The order of the learned judge was, as I stated above, namely, that the appeal be dismissed on the ground of no jurisdiction. 5. The learned judge published reasons for dismissing the appeal. 6. Section 47 of the Commercial Arbitration Act reads: "The court (that is the Supreme Court of South Australia) shall have the same power of making interlocutory orders for the purpose of and in relation to arbitration proceedings as it has for the purposes of and in relation to proceedings in the court." 7. As his Honour observed, the section is expressed very widely. It is wide enough to include every kind of interlocutory order made by the court. His Honour went on to observe that the power to make interlocutory orders under s.47 is one which is to make interlocutory orders as to procedural matters which will facilitate the course…

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: [1993] SASC 4258
Decision Date: 4 November 1993

CaseChat Overview and Summary

Baulderstone Hornibrook Engineering Pty Ltd, the applicant, is the defendant in arbitration proceedings against State Constructions Pty Ltd, the respondent. The applicant made an application for security of costs pursuant to s.47 of the Commercial Arbitration Act and s.1335 of the Corporations Law, which was dismissed by a single judge of the Supreme Court of South Australia. The applicant then appealed to the Full Court of the Supreme Court of South Australia, seeking leave to appeal the order of the single judge.

The legal issue before the court was whether the Supreme Court has jurisdiction to hear and determine an application for security for costs in arbitration proceedings under s.47 of the Commercial Arbitration Act. The court considered the arguments of both parties and the relevant statutory provisions and authorities. The Full Court found that the words of s.47 are sufficiently wide to give the court the power to make orders for security for costs in arbitration proceedings.

The court allowed the appeal and set aside the order of the single judge dismissing the appeal. The matter was referred to a single judge of the Supreme Court of South Australia for determination of the application for security for costs on the merits. The respondent was ordered to pay the applicant's costs of and incidental to the application for leave to appeal and the appeal, as well as the costs before Debelle J, to be taxed or agreed.

Orders