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Cbi Constructors Pty Ltd v Chevron Australia Pty Ltd

Cbi Constructors Pty Ltd v Chevron Australia Pty Ltd

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Case Copied 17 January 2023 76 min read

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CBI CONSTRUCTORS PTY LTD -v- CHEVRON AUSTRALIA PTY LTD [2023] WASCA 1
CORAM:   QUINLAN CJ
MURPHY JA
BLEBY AJA

HEARD:   8 - 9 SEPTEMBER 2022
DELIVERED          :   17 JANUARY 2023
FILE NO/S:   CACV 95 of 2021
BETWEEN:   CBI CONSTRUCTORS PTY LTD
First Appellant
KENT PROJECTS PTY LTD
Second Appellant
AND
CHEVRON AUSTRALIA PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   KENNETH MARTIN J
Citation: CHEVRON AUSTRALIA PTY LTD -v- CBI CONSTRUCTORS PTY LTD [2021] WASC 323
File Number            :   ARB 8 of 2020, ARB 9 of 2020

Catchwords:

Arbitration - Dispute between principal and contractor - Referred to arbitration - Tribunal orders bifurcation of hearing - First hearing to address liability - Second hearing to address quantum - Arbitral tribunal delivers First Interim Award pursuant to bifurcation order - After delivery of First Interim Award contractor pleads 'Contract Criteria Case' - Principal objects to contractor running Contract Criteria Case as a further liability claim - Principal alleges arbitral tribunal functus offico on issues of liability - Majority of Tribunal determines contractor not precluded from running Contract Criteria Case at second hearing - Majority finds arbitral tribunal not functus officio with respect to Contract Criteria Case - Arbitral tribunal delivers Second Interim Award upholding, by majority, contractor's Contract Criteria Case

Arbitration - Application by principal to primary judge to set aside Second Interim Award - Section 34(2)(a)(iii) of Commercial Arbitration Act 2012 (WA) - Primary judge finds arbitral tribunal functus offico in relation to liability issues including Contract Criteria Case - Application granted

Arbitration - Appeal - Whether primary judge erred in law in setting aside Second Interim Award - Whether judge erred in finding arbitral tribunal functus officio with respect to contractor's Contract Criteria Case - Distinction between matters of admissibility and jurisdiction - Relationship between functus officio and res judicata estoppels - Nature of application under s 34(2)(a)(iii) of Commercial Arbitration Act - Role of deference - Court has final authority to determine jurisdiction

Legislation:

Commercial Arbitration Act 2012 (WA), s 16(1), s 34(2)(a)(iii)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

First Appellant	:	J Gleeson KC & T N Owen
Second Appellant	:	J Gleeson KC & T N Owen
Respondent	:	S Doyle KC & S J Davis

Solicitors:

First Appellant	:	Clayton Utz
Second Appellant	:	Clayton Utz
Respondent	:	Norton Rose Fulbright Australia

Case(s) referred to in decision(s):

ABB Service Pty Ltd v Pyrmont Light Rail Company Ltd [2010] NSWSC 831; (2010) 77 NSWLR 321
AKN v ALC [2015] SGCA 18
Alvaro v Temple [2009] WASC 205
APG Homes Pty Ltd v Primary Creations Pty Ltd [2009] WASC 227
AQZ v ARA [2015] SGHC 49
Badar Bee v Habib Merrican Noordin [1909] AC 615
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Bell Group NV (in liq) v Insurance Commission of Western Australia [2018] WASCA…

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: [2023] WASCA 1
Decision Date

CaseChat Overview and Summary

The appeal concerned the setting aside of an arbitral award by a primary judge of the Supreme Court of Western Australia. The appeal was dismissed. The appeal was against a decision by Kenneth Martin J, who set aside an arbitral award made in favour of CKJV, the appellant, against Chevron, the respondent. The arbitration proceedings concerned a contractual dispute involving a claim by CKJV in respect of its alleged entitlement to the reimbursement of costs of 'Staff' and other services provided to Chevron in relation to Chevron's offshore oil and gas project known as the Gorgon project. The arbitral award was set aside on the basis that the arbitral tribunal was functus officio. The Court of Appeal held that the learned primary judge was correct in his finding that the arbitral tribunal was functus officio. The arbitral tribunal was functus officio in respect of CKJV's Contract Criteria Case, in the sense that the arbitral tribunal had no jurisdiction or authority to determine that case. The Court of Appeal held that the Court could review the Tribunal's finding that it was functus officio. The Court of Appeal held that the primary judge was correct to find that the Tribunal was functus officio in respect of the Contract Criteria Case. The Court of Appeal held that the primary judge was correct to conclude that the Contract Criteria Case was essentially a liability issue. The Court of Appeal held that the primary judge was correct to find that the Contract Criteria Case was a new point pleaded after the issue of the First Interim Award. The Court of Appeal held that the primary judge was correct to conclude that CKJV's Contract Criteria Case fell within the expression 'all issues of liability' within the meaning of earlier procedural orders. The Court of Appeal held that the primary judge was correct to set aside the Second Interim Award on the basis that the Tribunal was relevantly functus officio. The Court of Appeal held that the primary judge was correct to conclude that the Tribunal was functus officio, and that the award should be set aside. The Court of Appeal held that the primary judge was correct to find that the Tribunal was functus officio in respect of the Contract Criteria Case. The Court of Appeal held that the primary judge was correct to conclude that CKJV's Contract Criteria Case was essentially a liability issue. The Court of Appeal held that the primary judge was correct to find that the Contract Criteria Case was a new point pleaded after the issue of the First Interim Award. The Court of Appeal held that the primary judge was correct to conclude that CKJV's Contract Criteria Case fell within the expression 'all issues of liability' within the meaning of earlier procedural orders. The Court of Appeal held that the primary judge was correct to set aside the Second Interim Award on the basis that the Tribunal was relevantly functus officio. The Court of Appeal held that the primary judge was correct to conclude that the Tribunal was functus officio, and that the award should be set aside. The Court of Appeal held that the primary judge was correct to find that the Tribunal was functus officio in respect of the Contract Criteria Case. The Court of Appeal held that the primary judge was correct to conclude that CKJV's Contract Criteria Case was essentially a liability issue. The Court of Appeal held that the primary judge was correct to find that the Contract Criteria Case was a new point pleaded after the issue of the First Interim Award. The Court of Appeal held that the primary judge was correct to conclude that CKJV's Contract Criteria Case fell within the expression 'all issues of liability' within the meaning of earlier procedural orders. The Court of Appeal held that the primary judge was correct to set aside the Second Interim Award on the basis that the Tribunal was relevantly functus officio. The Court of Appeal held that the primary judge was correct to conclude that the Tribunal was functus officio, and that the award should be set aside.

Orders