D & Z CONSTRUCTIONS PTY LTD -v- IHI CORPORATION [2013] WASC 265
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 265 | |
| Case No: | ARB:15/2012 | 17 APRIL 2013 | |
| Coram: | MARTIN CJ | 16/07/13 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | D & Z CONSTRUCTIONS PTY LTD IHI CORPORATION |
Catchwords: | Commercial arbitration Leave to appeal from arbitrator's decision Actual costs Proof or evidence of actual costs Implied term that actual costs be incurred reasonably and properly Express term requiring parties to take reasonable steps to minimise cost overruns |
Legislation: | Commercial Arbitration Act 1985 (WA), s 38 |
Case References: | Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215 Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275 Aquatec-Maxcon Pty Ltd v Minson Nacap Pty Ltd (2004) 8 VR 16 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 52 ALJR 20; (1977) 180 CLR 266 Burton v Durkee 158 Ohio St. 313 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Daysea Pty Ltd v Watpac Australia Pty Ltd [2001] QCA 49 Mid-Ohio Mechanical Inc v Eisenmann Corporation 2009 - Ohio - 5804 Natoli v Walker (1994) 217 ALR 201 OneSteel Manufacturing Pty Ltd v United KG Pty Ltd [2006] SASC 119; (2006) 94 SASR 376 Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203 Qantas Airways Ltd v Joseland and Gilling (1986) 6 NSWLR 327 RBG v SGL Carbon Fibers [2010] BLR 631 Re Concrete Constructions Group Pty Ltd [1996] QCA 086; [1997] 1 Qd R 6 SGL Carbon Fibres Ltd v RBG Ltd [2012] Scot CS CSOH 19 Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37; (2011) 244 CLR 239 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
IHI CORPORATION
Respondent
Catchwords:
Commercial arbitration - Leave to appeal from arbitrator's decision - Actual costs - Proof or evidence of actual costs - Implied term that actual costs be incurred reasonably and properly - Express term requiring parties to take reasonable steps to minimise cost overruns
Legislation:
Commercial Arbitration Act 1985 (WA), s 38
Result:
Application for leave to appeal dismissed
Category: B
Representation:
Counsel:
Applicant : Mr P G Clifford & Mr R D Shaw
Respondent : Ms P E Cahill SC
Solicitors:
Applicant : Lavan Legal
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Algons Engineering Pty Ltd v Abigroup Contractors Pty Ltd (1998) 14 BCL 215
Anaconda Operations Pty Ltd v Fluor Australia Pty…
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Details
- Case
- [2013] WASC 265
- Decision Date
CaseChat Overview and Summary
The applicants, D & Z Constructions Pty Ltd, sought leave to appeal an arbitral award against the respondent, IHI Corporation. The dispute arose from a construction contract between the parties, which included a clause providing for commercial arbitration of disputes. D & Z Constructions sought to appeal the arbitrator's decision, arguing that the award was unreasonable due to a failure to take into account the actual costs incurred by D & Z Constructions. IHI Corporation opposed the application, arguing that the arbitrator's decision was correct and that D & Z Constructions had failed to prove that the costs were incurred reasonably and properly.
The court was required to decide whether the applicant had established that the arbitrator had failed to take into account the actual costs incurred by D & Z Constructions and whether the failure was such that it rendered the award unreasonable. The court was also required to determine whether D & Z Constructions had proved that the costs were incurred reasonably and properly, as required by an implied term of the contract, and whether there was an express term requiring the parties to take reasonable steps to minimise cost overruns.
The court found that the arbitrator had not failed to take into account the actual costs incurred by D & Z Constructions, as the arbitrator had considered all of the evidence before him and had made findings on the issue of costs. The court also found that D & Z Constructions had failed to prove that the costs were incurred reasonably and properly, as they had not provided sufficient evidence to establish this. The court further found that there was an express term in the contract requiring the parties to take reasonable steps to minimise cost overruns, and that this term was not inconsistent with the arbitrator's decision. The court dismissed the application for leave to appeal, finding that the arbitrator's decision was not unreasonable and that D & Z Constructions had not established any grounds for appeal.
The court was required to decide whether the applicant had established that the arbitrator had failed to take into account the actual costs incurred by D & Z Constructions and whether the failure was such that it rendered the award unreasonable. The court was also required to determine whether D & Z Constructions had proved that the costs were incurred reasonably and properly, as required by an implied term of the contract, and whether there was an express term requiring the parties to take reasonable steps to minimise cost overruns.
The court found that the arbitrator had not failed to take into account the actual costs incurred by D & Z Constructions, as the arbitrator had considered all of the evidence before him and had made findings on the issue of costs. The court also found that D & Z Constructions had failed to prove that the costs were incurred reasonably and properly, as they had not provided sufficient evidence to establish this. The court further found that there was an express term in the contract requiring the parties to take reasonable steps to minimise cost overruns, and that this term was not inconsistent with the arbitrator's decision. The court dismissed the application for leave to appeal, finding that the arbitrator's decision was not unreasonable and that D & Z Constructions had not established any grounds for appeal.
Orders
Orders of the court
Application for leave to appeal dismissed
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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