CMC Cairns P/L v Isicob P/L - [2002] QCA 181

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/respondent

FILE NO/S:

Appeal No 11034 of 2001
SC No 63 of 2001

DIVISION:

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 made

ORDER:

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, 41

Birkett 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, applied

Tradax 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 respondent

SOLICITORS:

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…

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: [2002] QCA 181
Decision Date: 31 May 2002

CaseChat Overview and Summary

CMC Cairns P/L (appellant) sought to appeal a decision that terminated arbitration proceedings against Isicob P/L (respondent), a dispute that arose from a building contract. The subcontractor, CMC Cairns, did not raise any objection to the amount paid by the builder, Isicob, until approximately six years after the completion of the works. The primary question before the court was whether the arbitration proceedings should be terminated due to the delay in raising the claim. Additionally, the court needed to determine whether a dispute must be communicated to the other party to establish when it first arose, and if the six-year delay constituted an inordinate and inexcusable delay under the Commercial Arbitration Act 1990 (Qld).

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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/respondent
FILE NO/S:	Appeal No 11034 of 2001 SC No 63 of 2001
DIVISION:	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 made
ORDER:	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, 41 Birkett 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, applied Tradax 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 respondent
SOLICITORS:	Thompson & Royds for the appellant Williams Graham & Carman for the respondent