Blackwell v Decoppi
[2011] WADC 207
•23 NOVEMBER 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: BLACKWELL -v- DECOPPI [2011] WADC 207
CORAM: REGISTRAR KINGSLEY
HEARD: 11 NOVEMBER 2011
DELIVERED : 23 NOVEMBER 2011
FILE NO/S: BUN CIV 30 of 2010
BETWEEN: GRAHAM BLACKWELL
First Plaintiff
ASTRA BLACKWELL
Second PlaintiffAND
TONY DECOPPI
First Defendant
TINA DECOPPI
Second Defendant
Catchwords:
Practice - Application for stay - Section 53(1) of the Commercial Arbitration Act 1985
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
First Plaintiff : Mr D F Beere
Second Plaintiff : Mr D F Beere
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
First Plaintiff : D F Beere
Second Plaintiff : D F Beere
First Defendant : Not applicable
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Helliar v De Coppi [2011] WADC 77
REGISTRAR KINGSLEY: By an application dated 21 February 2011 the defendants (the DeCoppi's) seek to have these proceedings stayed pursuant to s 53(1) of the Commercial Arbitration Act 1985 (the CAA).
Background
The plaintiffs (the Blackwells) as owners engaged the DeCoppi's, by a contract dated 5 March 2010, as builders, to build a house. The relevant contract is attached to the affidavit of Tony DeCoppi sworn 22 February 2011 (DeCoppi's affidavit).
The Blackwells plead that in breach of the contract the DeCoppi's failed to execute and complete the works in a proper and workmanlike manner, and the particulars of breach are set out in par 5.1 of the statement of claim. In addition, the Blackwells claim the DeCoppi's sought various payments for which the DeCoppi's were either not entitled to (the GST payments) or because there was a failure to comply with their contractual obligations (par 4.4 and 4.5 of the statement of claim).
An indorsed writ was filed by the Blackwells on 7 December 2010. The DeCoppi's entered an appearance on 4 February 2011 and the statement of claim was filed on 9 February 2011.
The contract
The relevant contract is attached to DeCoppi's affidavit. Clause 32 of the Contract, headed 'Settlement of Disputes', provides that should any dispute or difference arise between the owner and builder in connection with the contract, then either party shall give written notice, in the form prescribed under the Home Building Contracts Act 1991, of the existence of such dispute or difference, the notice providing sufficient details to identify the cause and nature of the dispute and call on the other party to rectify the matter complained of.
At the expiration of five working days after the giving of notice, the dispute or difference may be submitted for resolution by reference to the Disputes Tribunal in accordance with the House Building Contracts Act 1991 or by reference to arbitration in accordance with the provisions of the Commercial Arbitration Act 1985 (cl 32(c)).
Thus pursuant to cl 32 of the contract, a party may submit a dispute for resolution by one of two procedures – reference to the Disputes Tribunal or by reference to arbitration.
The Dispute Tribunal reference
In this matter the DeCoppi's have chosen to proceed to the Disputes Tribunal by lodging a complaint form and preliminary notice on 8 December 2010 (p 44, DeCoppi's affidavit). On 9 December 2010 a dispute notice was served on the Blackwells (p 48, DeCoppi's affidavit).
The difficulty with that procedure is that the DeCoppi's did not give the notice as required under cl 32 of the contract. The notice given by the DeCoppi's was after the complaint form had been lodged. The notice is to be given by a complainant and a period of five days is to elapse before the reference is to be made. This period of five days allows time for the parties to seek to informally resolve their differences (cl 32(c)). This process has not been allowed to unfold.
Further, s 17(2) of the Home Building Contracts Act 1991 (as it then was) provided that an application to the Disputes Tribunal for relief cannot be made before the applicant has given the other party a preliminary notice. In this matter the preliminary notice was given after the application was lodged with the Disputes Tribunal.
In my opinion, no valid application was made to the Tribunal. The application has not been proceeded with.
Recognising, probably, that difficulty the DeCoppi's then made a reference to arbitration.
The arbitration reference
In Helliar v De Coppi [2011] WADC 77, I held that cl 32 of the Home Building contract fell within cl 4 of the CAA as an agreement to arbitrate.
Section 53(1) of the CAA provides that a party against whom proceedings have been commenced may apply to the court for a stay of those proceedings.
The court, if satisfied there is no sufficient reason why the matter should not be referred to arbitration, and that the applicant was at all times ready and willing to do things necessary for the proper conduct of the arbitration, may make an order staying the proceedings.
The DeCoppi's gave the preliminary notice for purposes of the arbitration by the notice dated 9 December 2010. By letter dated 17 December 2010, the DeCoppi's sought the appointment of an arbitrator. On 20 December 2010 the Master Builders Association of Western Australia appointed an arbitrator. The DeCoppi's have made a deposit to the Master Builders Association Arbitration Trust Account (p 52 of DeCoppi's affidavit).
The appointed arbitrator wrote to the parties on 6 January 2011 proposing a preliminary conference by held as soon as possible. Mr Beere responded by letter dated 18 January 2011 stating that the DeCoppi's first need to obtain a stay of the District Court proceedings. The letter of Mr Beere goes on to detail some perceived difficulties in the arbitration.
The DeCoppi's then brought their application for a stay of proceedings.
The form used as a preliminary notice
The DeCoppi's lodged a complaint form with the Building Disputes Tribunal. That form does not comply with the Schedule 9 prescribed form (as it then was) in the Home Building Contracts Act Regulations 1992.
Clause 32 of the Home Building contract provides that either party may give written notice in the form prescribed. The DeCoppi's did not give notice in the form prescribed. In fact the notice given was clearly intended to refer the dispute to the Disputes Tribunal and not to arbitration as it is headed 'Complaint form'. The form prescribed is headed 'Preliminary Notice under s 17(3)'.
Accordingly, in my opinion, the DeCoppi's have not given any valid notice in accordance with the provisions of the Commercial Arbitration Act 1985. In my opinion there has been no valid submission to either the Disputes Tribunal or to arbitration.
That being the case, there is no basis for the defendant's application for stay and it is dismissed.
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