Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd - [2005] SASC 251

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
COX CONSTRUCTIONS PTY LTD v DECOR CEILINGS PTY LTD
Reasons for Decision of The Honourable Justice Layton
7 July 2005
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT
ARBITRATION - THE AWARD - APPEAL OR JUDICIAL REVIEW - POWERS OF COURT
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
Two notices of specific directions - one an application by the appellant seeking an extension of time for compliance with r 94.03 of the Supreme Court Rules and Supreme Court Practice Direction 13A - further that the extension be until a time after judgment in another related action. The second, a Notice for Specific Directions of the respondent seeking an earlier Notice for Specific Directions of appellant be dismissed for want of prosecution - both notices concern a procedural issue - two separate actions - both a consequence of an arbitration in which an interim award made - each party sought to challenge aspects of award - leave to appeal granted by single judge of this Court to respondent but not to appellant - appellant filed Notice of Alternative Contentions in the respondent's appeal - heard before a single judge of this Court - whether embarrassment caused if two appeals on foot involving same issues were decided differently.
Held: No prejudice to grant extension - refusal to extend time until judgment in other action delivered. Not persuaded matters would cover the same field - application refused.
Commercial Arbitration Act 1986 (SA) s 38; Supreme Court Rules 1987 (SA) r 94.03; Supreme Court Practice Directions (SA) PD 13A, referred to.
Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd 545/04; Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd 566/04 [2004] SASC 243; Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd [2005] SASC 146; Leighton Contractors Pty Ltd v South Australian Superannuation Fund Investment Trust (1994) 63 SASR 444, considered.

COX CONSTRUCTIONS PTY LTD v DECOR CEILINGS PTY LTD
[2005] SASC 251
CIVIL

LAYTON J: The matter before me consists of two Notices for Specific Directions. The first being a Notice for Directions of Décor Ceilings Pty Ltd (“Décor”) dated 13 May 2005. The second being an application by Cox Constructions Pty Ltd ("Cox") dated 8 June 2005.
Both notices concern a procedural issue.
The Décor Notice for Specific Directions seeks that an earlier Notice for Specific Directions of Cox filed on 1 September 2004 to appeal the decision of Anderson J made on 18 August 2004, be dismissed for want of prosecution.
The Cox Notice for Specific Directions of 8 June 2005, seeks that it be given an extension of time for compliance with Rule 94.03 of the Supreme Court Rules 1987 (SA) (“SCR”) and Supreme Court Practice Direction 13A, until such time after the judgment of the Court in Action No 545 of 2004.
In summary, the situation arises in the context of two separate actions.…

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: [2005] SASC 251
Decision Date: 7 July 2005

CaseChat Overview and Summary

Cox Constructions Pty Ltd and Decor Ceilings Pty Ltd were parties to an arbitration, from which both sought to appeal, resulting in two separate actions in the Supreme Court of South Australia. Cox Constructions sought an extension of time to comply with certain procedural rules in its appeal, and also sought that the extension be granted until after a judgment was delivered in the related appeal of Decor Ceilings. Decor Ceilings, on the other hand, sought dismissal of Cox Constructions' Notice for Specific Directions for want of prosecution. The legal issues before the Court were whether granting the extension would cause prejudice, and if the matters in the two appeals would overlap to the point of being duplicative.

The Court found that there had been no embarrassing or prejudicial delay to Decor Ceilings as a result of Cox Constructions' failure to progress its appeal. Therefore, the application by Decor Ceilings to dismiss Cox Constructions' Notice for Specific Directions was dismissed. The Court granted Cox Constructions an extension of time to comply with certain procedural rules, but refused to extend the time until after the judgment in Decor Ceilings' appeal was delivered. The Court was not persuaded that the matters before the judge in Decor Ceilings' appeal would necessarily cover the same field as those in Cox Constructions' appeal, as the material before the judge in the former appeal was different from that which was before the judge in the latter. The Court concluded that there would be no embarrassing or inappropriate contradictory determination by two single judges, as their decisions were made on different material.

The final orders of the Court were to dismiss Decor Ceilings' Notice for Specific Directions, and to grant Cox Constructions an extension of time for compliance with certain procedural rules, but not until after the judgment in Decor Ceilings' appeal was delivered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for Cox disputed the submission of Counsel for Décor that different considerations would apply on the two appeals and submitted that no essentially different material would be used.Conclusions I am satisfied that by reason of the conduct and communications between the solicitors for Cox and Décor, that there has been no embarrassing or prejudicial delay caused so far to Décor as a consequence of the failure of Cox to progress the Cox appeal. As previously indicated it is conceded that there was no suggestion of Cox abandoning its appeal. Therefore, I dismiss the application by Décor to dismiss the Notice for Specific Directions of Cox to appeal the decision of Anderson J. I consider it appropriate to grant the first part of the Notice for Specific Directions of Cox to extend time for compliance with Rule 94.03 of the SCR and Practice Direction 13A. My concern is, what period for extension should be granted for, and in particular whether it should be granted until such time as judgment in the Décor Appeal is determined by Besanko J. I am not persuaded that the matters coming before Besanko J on the Décor Appeal would necessarily cover exactly the same field as that which could be argued on the Cox Appeal at either the leave to appeal stage, or if leave is successful, on appeal. Further, I bear in mind the fact that leave to appeal in the Cox Appeal will be dependant only upon the material which was before Anderson J. That material is different from that which was before Besanko J at the time when His Honour concluded that a fresh Notice of Alternative Contentions in the Cox Appeal could be filed. There would not be an embarrassing or inappropriate contradictory determination by two single judges, as their decisions are made on different material. That being so, there is no argument which suggests that Cox should obtain an extension of time to pursue its appeal but in effect to have that stayed until after the decision of Besanko J on the Décor Appeal. This is not to say that a decision by Besanko J would not have considerable influence on any matter which may go before the Full Court if leave is granted to Cox to pursue its appeal. However, the matters do not appear to be simply duplication. Further, when looking at the potential outcomes, it appears to me that whichever party loses before Besanko J, that party may well appeal from His Honour’s decision. Cox may appeal whether or not it obtains leave to appeal in the Cox Appeal. Décor may appeal, especially if leave to appeal is granted in the Cox Appeal, but even if leave to appeal is refused. That being the case, it seems to me that there could later be an application to have any appeals in the Full Court heard at the same time. For these reasons I order the following:1. Dismiss the Notice for Specific Directions of Décor dated 13 May 2005.2. I allow paragraph 1 of the Notice for Specific Directions of Cox dated 8 June 2005 and grant an extension of time for Cox to comply with SCR 94.03 and Practice Direction 13A to 14 days from the date hereof.

Ratio Decidendi

Legal Principle Established

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