BMD Constructions Pty Ltd v Golding Contractors Pty Ltd - [2000] QSC 57

SUPREME COURT OF QUEENSLAND

CITATION: BMD Constructions Pty Ltd v Golding Contractors Pty Ltd
[2000] QSC 057
PARTIES: BMD CONSTRUCTIONS PTY LTD ACN 010 126 100
(applicant)
v
GOLDING CONTRACTORS PTY LTD ACN 009 734
794
(respondent)
FILE NO: S7438 of 1999
DIVISION: Trial
PROCEEDING: Civil Trial
DELIVERED ON: 20 March 2000
DELIVERED AT: Brisbane
HEARING DATE: 1 September 1999
JUDGE: Atkinson J
ORDER: Application for leave to appeal dismissed.
CATCHWORDS: ARBITRATION – AWARD – SETTING ASIDE – PROCEDURE – application for leave to appeal from interim award by arbitrator – earthworks dispute where applicant alleged errors of law on the face of the arbitration award – whether determination of question of law could substantially affect the rights of one of parties – whether there was a manifest error on the face of the award – whether there was strong evidence of an error of law and the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law - discretion by Judges of the Supreme Court to grant leave – policy behind Commercial Arbitration Act 1990, s 38 and its uniformity with other state legislation.
Acts Interpretation Act (Qld)1954, s 27B
Commercial Arbitration Act (Qld) 1990, s 29(1), s 38(4)(b),
s 38(5)
Abignano v Electricity Commission of New South Wales
(1987) 3 BCL 290, considered
American Diagnostica Inc v Gradipore Ltd (1998) 44
NSWLR 3, considered
Brown and Another v Moore and Another (1996) 68 IR 176;
(1996) 1 QADR 410, considered
Carpaolo Nominees Pty Ltd v Marrosan Nominees Pty Ltd
(1997) 112 NTR 1, applied
Crewford Pty Ltd v Transit Australia Pty Ltd CA No 5600 of
1998, 23 March 1999, considered
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2
Qd R 462, considered
Friend & Brooker Pty Ltd v Eurobodealla Council of the
Shire of NSWCA No 40293 of 1993, 24 November 1993,
distinguished
Hadley v Baxendale (1845) 9 Ex 341; 156 ER 145,
considered
Ipswich Borough Council v Fisons PLC [1990] 1 Ch 709,
considered
Jennings Construction v QH & M Birt (1986) 8 NSWLR 18,
considered
Kennedy-Taylor (Qld) Pty Ltd v Civil & Civic Pty Ltd CA No
8733 of 1996, 3 February 1998, considered
Kleerstyle Homes v Dickson SC No 8037 of 1997,
16 September 1997, considered
Natoli v Walker NSWCA No 40351 of 1993, 26 May 1994,
applied
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982]
AC 724, considered
Promenade Investments Pty Ltd v New South Wales (1992)
26 NSWLR 203, applied
Re Tiki Village International Limited [1994] 2 Qd R 674,
considered
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR
247, considered
Warley Pty Ltd v Adco Constructions Pty Ltd (1992) 8 BCL
300, applied
White Constructions (NT) Pty Ltd v Mutton (1988) 57 NTR 8;
91 FLR 419, considered

COUNSEL: D D Bates for the applicant J K Bond for the respondent
SOLICITORS: McCullough Robertson for the applicant
Clayton Utz for the…

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: [2000] QSC 57
Decision Date: 20/03/2000

CaseChat Overview and Summary

BMD Constructions Pty Ltd brought an application against Golding Contractors Pty Ltd in the Supreme Court of New South Wales, challenging an arbitration award. The primary issue before the court was whether BMD Constructions Pty Ltd was entitled to leave to appeal the arbitration award under s 38(5) of the Arbitration Act. The court had to determine if the appeal grounds met the criteria set out in the statute, specifically whether the amount in dispute substantially affected the rights of a party to the arbitration agreement and whether the appeal involved a question of law rather than fact.

The court examined the submissions made by BMD Constructions Pty Ltd and found that they did not satisfy the requirements of s 38(5). The amount in dispute was deemed insufficient to substantially affect the rights of a party to the arbitration agreement. The court further held that the mislabelling of a claim for costs as a claim for damages did not warrant intervention as it merely involved a change in the denotation of part of the award. Additionally, the issue of insufficient proof for one part of the quantum of the claim was considered a factual matter rather than a legal one, and therefore not suitable for court intervention.

Having found that none of the grounds of appeal met the criteria under s 38(5) of the Arbitration Act, the court concluded that BMD Constructions Pty Ltd was not entitled to leave to appeal. Consequently, the application for leave to appeal was dismissed. The court issued an order dismissing the application for leave to appeal, thereby upholding the arbitration award.

Orders

Orders of the court

Application for leave to appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

These submissions do not satisfy the tests set out in s 38(5). The amount involved is not sufficient to substantially affect the rights of a party to the arbitration agreement. To the extent that it was submitted that a proper claim for costs was mislabelled a claim for damages, the effect of a successful appeal would be merely to change the denotation of one part of the award. To the extent that the appellant asserted there was insufficient proof of one part of the quantum of the claim, of which only $11,930.00 was allowed, that is a question of fact and not one of law and therefore not one warranting intervention by the court. Conclusion It follows that, as s 38(5) of the Act has not been satisfied with regard to any of the grounds of appeal, the applicant should not be granted leave to appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BMD Constructions Pty Ltd v Golding Contractors Pty Ltd [2000] QSC 057
PARTIES:	BMD CONSTRUCTIONS PTY LTD ACN 010 126 100 (applicant) v GOLDING CONTRACTORS PTY LTD ACN 009 734 794 (respondent)
FILE NO:	S7438 of 1999
DIVISION:	Trial
PROCEEDING:	Civil Trial
DELIVERED ON:	20 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	1 September 1999
JUDGE:	Atkinson J
ORDER:	Application for leave to appeal dismissed.

COUNSEL:	D D Bates for the applicant J K Bond for the respondent
SOLICITORS:	McCullough Robertson for the applicant Clayton Utz for the…