Cole v Gebauer Nominees Pty Ltd

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COLE -v- GEBAUER NOMINEES PTY LTD [2012] WASC 9



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2012] WASC 9
Case No:ARB:22/20105 JULY 2011
Coram:ALLANSON J12/01/12
19Judgment Part:1 of 1
Result: Leave to appeal granted on ground 2
Leave to appeal refused on grounds 1 and 3
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Parties:GERHARD JOSEPH COLE
PATRICK EDWARD MULLALLY
GEBAUER NOMINEES PTY LTD

Catchwords:

Arbitration
Leave to appeal
Manifest error of law
Failure to determine all of claim

Legislation:

Commercial Arbitration Act 1985 (WA)

Case References:

Cargill International SA v Peabody Australia Mining Ltd [2010] NSWSC 88
Champsey Bhara & Co v Jivraj Balloo Spinning & Weaving Co Ltd [1923] AC 48
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd [2011] WASCA 109
Gordian Runoff Limited v Westport Insurance Corporation [2010] NSWCA 57
Grincelis v House [2000] HCA 42; (2000) 201 CLR 321
Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60
Hartley Poynton v Ali [2005] VSCA 53; (2005) 11 VR 568
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640
Ipswich Borough Council v Fisons PLC [1990] 1 Ch 709
Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351
Jones v Schiffmann [1971] HCA 52; (1971) 124 CLR 303
Kizbeau Pty Ltd v WG & B Pty Ltd [1995] HCA 4; (1995) 184 CLR 281
Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245; (2002) 27 WAR 287
New Generation Enterprises Pty Ltd v Western Australian Planning Commission [2007] WASCA 89
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
Qantas Airways Ltd v Joseland & Gilling (1986) 6 NSWLR 327
Rio Tinto Exploration Pty Ltd v Graphite Holdings Pty Ltd [2007] WASCA 276
Robinson v Harman (1848) 1 Exch 850
Smith and New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265
Tuta Products Pty Ltd v Hutcherson Bros Pty Ltd [1972] HCA 4; (1972) 127 CLR 253
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603
Waterford v The Commonwealth of Australia [1987] HCA 25; (1987) 163 CLR 54
Westport Insurance Corporation v Gordian Runoff Limited [2011] HCA 37
Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd [2009] WASC 237


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : COLE -v- GEBAUER NOMINEES PTY LTD [2012] WASC 9 CORAM : ALLANSON J HEARD : 5 JULY 2011 DELIVERED : 12 JANUARY 2012 FILE NO/S : ARB 22 of 2010 MATTER : the Commercial Arbitration Act 1985 Pt V
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Details
Case
[2012] WASC 9
Decision Date

CaseChat Overview and Summary

The case of Cole v Gebauer Nominees Pty Ltd arose from a dispute between the plaintiff, Mr. Cole, and the defendant, Gebauer Nominees Pty Ltd, involving a property transaction. Mr. Cole sought damages for alleged breaches of contract and misrepresentations made by Gebauer Nominees during the sale of a property. The matter was initially referred to arbitration, where the arbitrator dismissed Mr. Cole's claims. Mr. Cole subsequently sought leave to appeal the decision of the arbitrator on multiple grounds, including manifest error of law and the failure to determine all of the claim.

The court was required to determine whether the arbitrator's decision contained a manifest error of law and if the arbitrator failed to determine all of Mr. Cole's claims. Additionally, the court had to assess whether the grounds for appeal were sufficient to warrant leave to appeal. The key legal issues involved the interpretation of the arbitration agreement, the standard of review for the arbitrator's decision, and the criteria for granting leave to appeal from an arbitration award.

The court found that while the arbitrator did not make a manifest error of law, there was a failure to determine all of Mr. Cole's claims, which warranted the grant of leave to appeal on that ground. However, the court determined that the other grounds for appeal were not sufficient to merit leave. The court reasoned that the arbitrator's failure to address all of Mr. Cole's claims constituted a significant oversight that required appellate intervention. On the other hand, the court was not persuaded that the other grounds for appeal were valid, and therefore, leave to appeal was refused on those grounds. Consequently, leave to appeal was granted on ground 2, and refused on grounds 1 and 3.

Orders

Orders of the court

Leave to appeal granted on ground 2

Leave to appeal refused on grounds 1 and 3

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

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