D & M (Australia) Pty Ltd v Crouch Developments Pty Ltd

D & M (Australia) Pty Ltd sought leave to appeal against an arbitration award made by Crouch Developments Pty Ltd. The primary dispute was whether the arbitrator made manifest errors of law in finding an implied term inconsistent with the express terms of the contract, and whether the arbitrator’s procedural misconduct warranted the court setting aside the award and remitting the matter back to the arbitrator. The court had to determine if the errors of law were manifest and whether the arbitrator's procedural misconduct was such that it should have prompted the court to remit the matter back to the arbitrator for reconsideration.

The court held that an error of law would be considered manifest if it was evident or obvious rather than merely arguable. The court considered the legislative intent that leave to appeal should not be readily given and that court intervention should be strictly limited. The court found that the alleged implied term was not pleaded, and therefore the arbitrator’s finding on the implied term was a manifest error of law. However, the court noted that procedural unfairness amounting to a substantial miscarriage of justice was required to warrant setting aside the award and remitting the matter back to the arbitrator.

The court determined that while the arbitrator’s procedural misconduct was evident, it did not amount to a substantial miscarriage of justice that would warrant the court setting aside the award and remitting the matter back to the arbitrator. The court declined to exercise its discretion to remit the matter back to the arbitrator for reconsideration, and thus dismissed the application for leave to appeal.

The court did not make any orders for costs.