DALCON CONSTRUCTION PTY LTD -v- JONES & ORS [2004] WASC 272

Link to Appeal :

[2006] WASCA 205

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 272
Case No:	ARB:8/2004	Heard:	25 NOVEMBER 2004
Coram:	MASTER SANDERSON	Delivered:	15/12/04
No of pages:	14	Judgment Part:	1 of 1
Result:	Leave to appeal granted, Appeal allowed
Category:	A
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Parties:	DALCON CONSTRUCTION PTY LTD TREVOR JONES CHRISTINE JONES PHIL D FAIGEN
Catchwords:	Commercial Arbitration Act 1985 Application for leave to appeal Duty of owner to make payment of progress claim Proper construction of standard form contract
Legislation:	Commercial Arbitration Act 1985, s 38
Case References:	Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245 Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149 Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203 UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221 Algons Engineers Pty Ltd v Abbigroup Contractors Pty Ltd, unreported; SCt of NSW; Library No 55026; 1 August 1997 Banir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 Besser Industries v Straton (1995) 16 ACSR 596 Concrete Constructions Group Pty Ltd t/as Concrete Constructions (ACT) v Coddlestone Pty Ltd & Anor [1995] ACTSC 91 Concrete Constructions Group Pty Ltd; Blue Chip Pty Ltd v Concrete Constructions Group Pty Ltd [1997] Qd R 6 Egan v State Transport Authority (1982) 31 SASR 542 LU Simon Builders Pty Ltd v M D Fowles [1992] 2 VR 189 Pindan v Uniseal [2004] WASC 152

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DALCON CONSTRUCTION PTY LTD -v- JONES & ORS [2004] WASC 272 CORAM : MASTER SANDERSON HEARD : 25 NOVEMBER 2004 DELIVERED : 15 DECEMBER 2004 FILE NO/S : ARB 8 of 2004 BETWEEN : DALCON CONSTRUCTION PTY LTD

Applicant

AND

TREVOR JONES

CHRISTINE JONES

First Respondents

PHIL D FAIGEN

Second Respondent

Catchwords:

Commercial Arbitration Act1985 - Application for leave to appeal - Duty of owner to make payment of progress claim - Proper construction of standard form contract

Legislation:

Commercial Arbitration Act 1985, s 38

(Page 2)

Result:

Leave to appeal granted

Appeal allowed

Category: A

Representation:

Counsel:

Applicant : Mr A S Stavrianou

First Respondents : Mr G M Abbott

Second Respondent : No appearance

Solicitors:

Applicant : Zilkens & Co

First Respondents : Anderson Josland

Second Respondent : No appearance

Case(s) referred to in judgment(s):

Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149
Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221

Case(s) also cited:

Algons Engineers Pty Ltd v Abbigroup Contractors Pty Ltd, unreported; SCt of NSW; Library No 55026; 1 August 1997
Banir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833
Besser Industries v…

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.

Continue reading Dalcon Construction Pty Ltd v Jones

Details

AGLC: Dalcon Construction Pty Ltd v Jones [2004] WASC 272
Case: [2004] WASC 272
Decision Date

CaseChat Overview and Summary

Dalcon Construction Pty Ltd sought leave to appeal against an arbitration award made by Phil D Faigen, who was the second respondent in this matter. The first respondents were Trevor and Christine Jones. The dispute arose from a building contract between Dalcon Construction and the Joneses. Dalcon Construction sought to appeal against the award of Mr Faigen on the basis that it contained errors of law. The Supreme Court was required to decide whether leave to appeal should be granted and whether the appeal should be allowed. In granting leave to appeal and allowing the appeal, the court held that the arbitration award contained errors of law that substantially affected the rights of Dalcon Construction. The error was manifest on the face of the award. The award contained an error in the construction of a standard form contract. The court held that the contract required the owners to pay the full amount of progress claims made by the builder. The court found that the Arbitrator's decision to hold that the owners were only required to pay a portion of the progress claims was in error. The court held that the award should be set aside and the matter remitted to a new arbitrator for reconsideration.

Orders