D & Z Constructions Pty Ltd v IHI Corporation

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D & Z CONSTRUCTIONS PTY LTD -v- IHI CORPORATION [2013] WASC 265



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASC 265
Case No:ARB:15/201217 APRIL 2013
Coram:MARTIN CJ16/07/13
28Judgment 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
CITATION : D & Z CONSTRUCTIONS PTY LTD -v- IHI CORPORATION [2013] WASC 265 CORAM : MARTIN CJ HEARD : 17 APRIL 2013 DELIVERED : 16 JULY 2013 FILE NO/S : ARB 15 of 2012 BETWEEN : D & Z CONSTRUCTIONS PTY LTD
    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.

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

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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