SUPREME COURT OF QUEENSLAND
CITATION:
CMC Cairns P/L v Isicob P/L [2002] QCA 181
PARTIES:
CMC CAIRNS PTY LTD ACN 010 861 579
respondent/applicant
v
ISICOB PTY LTD ACN 010 398 044
appellant/respondentFILE NO/S:
Appeal No 11034 of 2001
SC No 63 of 2001DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Cairns
DELIVERED ON:
31 May 2002
DELIVERED AT:
Townsville
HEARING DATE:
28 May 2002
JUDGES:
McMurdo P, Williams JA, Cullinane J
Separate reasons for judgment of each member of the Court; each concurring as to the order madeORDER:
Appeal dismissed with costs
CATCHWORDS:
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - OTHER MATTERS - where claim by sub-contactor not made until six years after completion of works - whether arbitration proceedings should be terminated
LIMITATION OF ACTIONS - CONTRACTS, TORTS AND PERSONAL ACTIONS - THE PERIOD OF LIMITATION - ACTIONS FOUNDED ON SIMPLE CONTRACT AND TORT (INCLUDING BREACH OF STATUTORY DUTY) - where subcontractor did not dispute the amount paid by the builder as the final payment under the contract until some 6 years later - whether communication to the other party is a necessary element of a dispute in order to establish when the dispute first arose
ARBITRATION - CONDUCT OF THE ARBITRATION PROCEEDINGS - TERMINATION OR STAY OF ARBITRATION PROCEEDINGS - appeal from an order terminating arbitration proceedings pursuant to s 46 of Commercial Arbitration Act 1990 (Qld) - whether there was an inordinate and inexcusable delay where claim pursued some 6 years after completion of works - whether the period of delay before the arbitration proceedings commenced is relevant in considering whether or not it was inordinate and inexcusable - when time commences to run pursuant to s 41(2) of Limitation of Actions Act 1974 (Qld)
Commercial Arbitration Act 1990 (Qld), s 46
Limitation of Actions Act 1974 (Qld), ss 10, 41Birkett v James [1978] AC 297, distinguished
Clements v Simto Pty Ltd [2001] WASCA 183, considered
Concrete Developments Pty Ltd v Queensland Housing Commission [1961] QdR 356, applied
Ellerine Brothers Pty Ltd v Klinger [1982] 1 WLR 1375, applied
John Grant & Sons Ltd v Trocadero Building & Investment Co Ltd (1938) 60 CLR 1, applied
Rheem Australia Limited v Federal Airports Corporation, Ambrose J, No 967 of 1991, 20 February 1992, applied
Santos Ltd & Ors v Pipelines Authority of South Australia (1996) 66 SASR 38, appliedTradax Internacional S.A. v Cerrahoqullari T.A.S. (The M Eregli) [1981] 3 All ER 344, applied
COUNSEL:
M Morrissey for the appellant
A Philp for the respondentSOLICITORS:
Thompson & Royds for the appellant
Williams Graham & Carman for the respondent
McMURDO P: I agree with the reasons for judgment of Williams JA and with the order proposed.
WILLIAMS JA: This is an appeal from a decision of Jones J ordering pursuant to s 46 of the Commercial Arbitration Act 1990 (Qld) (“the Act”) that arbitration proceedings commenced by the appellant on 21…
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- Case
- [2002] QCA 181
- Decision Date
CaseChat Overview and Summary
The court examined the relevant legislation, including the Limitation of Actions Act 1974 (Qld), and considered precedents from various cases. It found that the critical factor was whether the delay was inordinate and inexcusable, not the mere passage of time. The court held that the delay in this case was significant, and the failure to communicate the dispute promptly exacerbated the delay. The court also considered the nature of the delay, concluding that it was unreasonable and had prejudiced the builder. The court applied the principles established in previous cases, such as Rheem Australia Limited v Federal Airports Corporation and Santos Ltd & Ors v Pipelines Authority of South Australia, to support its decision.
The appeal was dismissed, and the original decision to terminate the arbitration proceedings was upheld. The court found that the delay in raising the claim was inordinate and inexcusable, leading to the termination of the arbitration. The court ordered that the appeal be dismissed with costs, meaning that CMC Cairns P/L would be responsible for the costs of the appeal.
Orders
Orders of the court
Appeal dismissed with 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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