De Francesch Builders Pty Ltd v Riley - [2000] WASC 301

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: DE FRANCESCH BUILDERS PTY LTD -v- RILEY & ANOR [2000] WASC 301

CORAM: PARKER J

HEARD: 17 OCTOBER 2000

DELIVERED : 8 DECEMBER 2000

FILE NO/S: ARB 10 of 2000

BETWEEN: DE FRANCESCH BUILDERS PTY LTD
Claimant
AND
GRAHAM DOUGLAS RILEY
ANNE MARIE RILEY
Respondents

Catchwords:

Arbitration - Appeal from award - Application for leave - Arbitrator determined agreed sum in default not a penalty - Whether manifest error of law

Legislation:

Commercial Arbitration Act 1985 (WA), s 38(5)

Result:

Leave to appeal refused

Representation:

Counsel:

Claimant: Ms M A Jordan
Respondents : Mr P K Walton

Solicitors:

Claimant: Clayton Utz
Respondents : Jackson McDonald

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

AMEV-UDC Finance Limited v Austin & Anor (1986) 162 CLR 170
Bridge v Campbell Discount Company Limited [1962] AC 600
Clydebank Engineering and Shipbuilding Co v Don Jose Ramos Yquierdo y Castaneda [1905] AC 6
Cooden Engineering Co Ltd v Stanford [1953] 1 QB 8
Elsley v J G Collins Insurance Agencies Ltd (1978) 83 DLR (3d) 1
Esanda Finance Corporation Ltd v Plessing (1989) 166 CLR 131
Masawa Australasia Pty Ltd v J Corp Pty Ltd [2000] WASC 5
Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504
O'Dea v All States Leasing System (WA) Pty Ltd & Ors (1983) 152 CLR 359
Pioneer Shipping Ltd v BTP Tioxide Ltd - The Nema [1982] AC 724
Public Works Commissioner v Hills [1906] AC 368
Robophone Facilities Ltd v Blank [1996] 1 WLR 1428
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd [2000] WASC 57

Case(s) also cited:

Citicorp Australia Limited v Hendry & Ors (1985) 4 NSWLR 1
Promenade Investments Pty Ltd v State of New South Wales [1992] 26 NSWLR 203

PARKER J: The claimant seeks leave, pursuant to s 38 of the Commercial Arbitration Act 1985, to appeal from an interim award of an arbitrator by which it was determined that an amount of $3000 per week stipulated in a building contract between the claimant and the respondents was enforceable as liquidated damages for delay by the claimant in the completion of the contract works. This issue had been posed by the claimant and the respondents to the arbitrator as a preliminary issue in an arbitration to which they were the parties. Hence, the award of the arbitrator is an interim one.
The building contract was for the construction by the claimant of a residence for the respondents. The contract sum was $1,718,400. The contract specified a date for practical completion of 4 May 1998. Practical completion was not achieved by that date. There seem to have been no extensions of the time for practical completion determined by the contract architect. The amount certified by the architect, as due and payable by the claimant pursuant to the contract as liquidated damages, was $75,000. This was calculated at the rate stipulated in the contract of $3,000 per week. The claimant disputed its liability to pay anything by way of liquidated damages on the basis that the provision in the building contract was not enforceable as a matter of law, being a penalty.
It was this issue which was referred to, considered and determined by the arbitrator. By his interim award, dated 17 April 2000, it was determined that the provision of the contract providing for Liquidated and Ascertained Damages at the rate of $3,000 per week:
" … is not a penalty and is enforceable within the terms of the contract and at law."
It is from this interim award that leave to appeal is sought by the claimant with the view to the whole of the interim award being set aside.
The contract was in a standard form in general use, being The Building Works Contract - JCC-D 1994 without Quantities, the second edition approved 9 August 1994, of the Joint Contracts Committee of the Royal Australian Institute of Architects, the Master Builders Australia Incorporated and the Building Owners and Managers Association of Australia Limited.
The relevant provision was:
"10.14LIQUIDATED AND ASCERTAINED DAMAGES
If the Builder shall fail to bring the Works to Practical Completion by the Date for Practical Completion:
10.14.01The Architect may give notice in writing to the Builder and to the Proprietor that in his opinion the Works ought reasonably to have been brought to Practical Completion at some earlier date to be stated in that notice, not being earlier than the Date for Practical Completion.
10.14.02If such notice is given the Builder shall pay or allow to the Proprietor a sum calculated and certified by the Architect at the rate stated in Item O of the Appendix as liquidated and ascertained damages for the period (commencing from the date so stated) during which the Works shall remain or have remained not brought to Practical Completion.
10.14.03 In the event of no further moneys being payable to the Builder or in the event of the sum calculated in accordance with paragraph 10.14.02 exceeding the amount remaining payable by the Proprietor to the Builder, the Proprietor shall be entitled to recover the same, or any such excess, as a debt due to the Proprietor by the Builder."
The relevant item in the Appendix to the contract provided:
"O.Rate(s) for liquidated and ascertained
damages 10.14.02 $3,000 per week"
Leave to appeal was sought a little out of time but an extension of time was granted by a Master. By s 38(2) of the Act an appeal lies to this Court on any question of law arising out of an award. The Act relevantly further provides:
"(4)An appeal under subsection (2) may be brought by any of the parties to an arbitration agreement -
(a)with the consent of all the other parties to the arbitration agreement; or
(b)subject to section 40, with the leave of the Supreme Court.
(5)The Supreme Court shall not grant leave under subsection (4)(b) unless it considers that -
(a)having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and
(b)there is -
(i)a manifest error of law on the face of the award; or
(ii)strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law."
Subsection (5) is now in the form quoted above following Amendment No 43 of 1997 which, in effect, added what is now s 38(5)(b)(i) and (ii).
These provisions of s 38 of the Act are in what is now substantially common form throughout Australia. Even before the 1997 amendments, the terms of s 38(4) and 38(5) were such that in Masawa Australasia Pty Ltd v J Corp Pty Ltd [2000] WASC 5, I observed at [5]:
"It has been noted that s 38, like similar provisions in other jurisdictions, is concerned with finality in arbitration proceedings. It is designed to limit the intervention of the courts in arbitration; Update Constructions Pty Ltd v Roselle Child Care Centre Ltd (1990) 20 NSWLR 251 at 259-260 per Kirby P (as he then was). Also in point is dicta of Bingham J in Tor Line A/B v Alltrans Group of Canada, the TFL Prosperity [1982] 1 Lloyd's Rep 617 at 625 where his Lordship said:
'The philosophy of the new Act clearly is that the election of parties to have their disputes resolved by arbitration should be respected in the sense that awards should not be scrutinised with an over critical eye and that the court should exercise restraint ... in seizing themselves of legal questions.'"
Until the 1997 amendment there had been in this State a level of reservation about the application of what are commonly known as The Nema Guidelines (Pioneer Shipping Ltd v BTP Tioxide Ltd - The Nema [1982] AC 724) as had also been the case before the enactment, in other Australian jurisdictions, of amendments in similar terms to those in the 1997 amendment. There has been a general level of acceptance, however, that the 1997 amendment and similar amendments elsewhere in Australia were designed to overcome this reservation and to enable the application, in substance, of the narrower approach reflected in The Nema Guidelines. Hence, following the 1997 amendment, I commented on the present position in the Masawa decision at [6]-[8] and [10] as follows:
"The 1997 amendment also added the further requirements of s 38(5)(b). Hence, before leave can be granted, there must also now be either:
'(1) a manifest error of law …; or
(2) strong evidence that the Arbitrator … made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.' (emphasis added)
From the nature of these additional requirements and the terms in which they are expressed it is clear that the legislature has sought to reinforce the policy of the provision against too ready intervention by this Court.
While leave to appeal may not be granted by this Court unless the requirements of both s 38(5)(a) and either s 38(5)(b)(i) or s 38(5)(b)(ii) are satisfied, satisfaction of those requirements does not of itself entitle the applicant to a grant of leave. Section 38(5)(a) and (b) are in effect prerequisites or threshold requirements before leave may be granted. Satisfaction of those prerequisites or threshold requirements merely gives rise to an unfettered discretion to grant leave pursuant to s 38(4)(b). This discretion to grant leave is to be exercised after considering all the circumstances of the case; Qantas Airways Ltd v Joseland Gilling (1986) 6 NSWLR 327; Multiplex Constructions v International Golf Services Pty Ltd, unreported; SCt of WA (Olney J); Library No 6978; 17 December 1987; Thiess Contractors Pty Ltd v Water Corp of Western Australia, unreported; SCt of WA (Parker J); Library No 970561; 28 October 1997 at 6-8.
…
In the absence of direct authority on s 38(5)(b) useful guidance to the meaning of some of its terms is provided by decisions given in the context of other legislation. Hence, it would seem that by the words 'manifest error' the legislature contemplated that the error of law should be evident or obvious rather than merely arguable; Larkin v Parole Board (1987) 10 NSWLR 57 at 70-71 and Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203 at 225. Thus in a very similar statutory context it had been that a statutory requirement that there be a manifest error of law before leave is granted requires that there should be 'powerful reasons for considering on a preliminary basis, without any prolonged adversarial argument, that there is on the face of the award an error of law'; Promenade Investments Pty Ltd v State of New South Wales at 226."
This history of the legislation and its judicial interpretation has been more fully commented on in the very helpful observations and analysis of Steytler J in UDR Equipment Pty Ltd v Afkos Industries Pty Ltd [2000] WASC 57 at [37] - [51].
It is in the light of these considerations that s 38(4) and s 38(5) is to be interpreted and applied when determining in this case whether leave should be granted.
It may be said at once that, for the purposes of s 38(5)(a), it can be accepted that in this case the question of law raised could, and would, substantially affect the rights of the parties to the arbitration agreement.
It was contended for the claimant that, within the meaning of s 38(5)(b)(i), a manifest error of law was apparent on the face of the award. The interim award relevantly does little more than recite the determination of the arbitrator as quoted earlier in these reasons. While that determination may, or may not, be wrong in law, any such error is not apparent on the face of the award. It is necessary to consider, at least, the reasons of the arbitrator before the error which the claimant seeks to make out can be identified. Section 29(1)(c) of the Act required the arbitrator to include in the award a statement of the reasons for making the award. The arbitrator published reasons for his interim award, but these were in a document separate from the award and were not expressly incorporated by reference into the award itself. The parties have proceeded on the basis that the reasons are to be taken as included in the award. If this were not so, it would be necessary for the claimant inter alia to demonstrate, within the meaning of s 38(5)(b)(ii), that there is strong evidence that the arbitrator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.
In the circumstances it is appropriate for me to consider the application primarily on the basis proposed by the parties, ie as if the reasons were included in the award. Fortunately, it is the case that had the reasons of the arbitrator not formed part of the award, so that the statutory question became that posed by s 38(5)(b)(ii) rather than whether the reasoned award revealed manifest error, I would not have come to a different view as to the outcome of this application.
For the claimant, it is submitted that it is settled law that in a contract and circumstances such as the present:
"The essence of a penalty is a payment of money stipulated as in terrorem of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damages, and
… whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged as at the time of the making of the contract not at the time of the breach"; Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 at 86-87 per Lord Dunedin (emphasis added).
As was stated in the advice of the Privy Council in Public Works Commissioner v Hills [1906] AC 368 at 375-6:
"It is well settled law that the mere form of expression 'penalty' or 'liquidated damages' does not conclude the matter … the criterion of whether a sum … is truly liquidated damages … is to be found in whether the sum stipulated for can or can not be regarded as a 'genuine pre-estimate of the creditor's probable or possible interest in the due performance of the principle obligation'. The indicia of this question will vary according to the circumstances."
In Bridge v Campbell Discount Company Limited [1962] AC 600 Lord Dunedin's words just quoted were expressly drawn on by Lord Radcliffe at 621-2 for the proposition that:-
" … a sum cannot be legally exacted as liquidated damages unless it is found to amount to 'a genuine pre-estimate of loss'… If it does not amount to such a pre-estimate, then it is to be regarded as a penalty." (emphasis added)
These statements have been acted on in Australia; see for example, O'Dea v All States Leasing System (WA) Pty Ltd & Ors (1983) 152 CLR 359 at 367, although in AMEV-UDC Finance Limited v Austin & Anor (1986) 162 CLR 170 at 190 it was observed that some subsequent decisions, eg Cooden Engineering Co Ltd v Stanford [1953] 1 QB 86 at 98, had tended to erode the concept underlying Lord Dunedin's approach, but a return to the Dunlop approach had much to commend it; cf Robophone Facilities Ltd v Blank [1996] 1 WLR 1428 at 1447 - 1448. See also Elsley v J G Collins Insurance Agencies Ltd (1978) 83 DLR (3d) 1 at 15.
It was further observed in AMEV-UDC at 193 that in considering whether a term of a contract is final in character rather than a genuine pre‑estimate of damage, the test -
"is one of degree and will depend on a number of circumstances, including (1) the degree of disproportion between the stipulated sum and the loss likely to be suffered by the plaintiff, a factor relevant to the oppressiveness of the term to the defendant …"
The discussion of these decisions in Esanda Finance Corporation Ltd v Plessing (1989) 166 CLR 131 cf 139-40 is also to be noted. At p 143 of that decision Brennan J said with respect to Lord Dunedin's "extravagant and unconscionable" test -
"To apply this test, it is necessary to identify the breach prescribed by the clause which imposes the supposed penalty and to ascertain the measure of loss which might follow from that breach."
In the claimant's submissions to the arbitrator, and to me, the statements of legal principle reflected in Lord Dunedin's speech in Dunlop were said to require that by the time the parties entered into the contract they had together considered and reached agreement as to the damages the respondents would be likely to incur if the works were not completed within the agreed time. Put more shortly, it is submitted that to be liquidated damages, the amount of $3,000 per week must be "a genuine pre-estimate by the parties to the contract of the loss likely to be suffered by the innocent party as a result of the breach".
The evidence before the arbitrator was to the effect that at no time before entering into the building contract was the amount of $3,000 per week discussed between the parties and the parties never jointly turned their minds to, or agreed upon, the quantum of the loss which the respondents were likely to incur. It was the claimant's submission to the arbitrator, repeated to me, that in these circumstances the $3,000 per week cannot be "a genuine pre-estimate" of the respondent's likely loss.
Without falling from that submission, by way of further or alternative submission, both to the arbitrator and to me, it was also contended that (even if it is not essential for the parties to have jointly considered and reached agreement on the likely loss of the respondents from delay in this case) it was not open to the arbitrator to find that the $3,000 per week was a genuine pre‑estimate by the respondents of their likely loss as the only evidence suggested that there had not been an attempt before contract, even by the respondents, to pre-estimate their loss.
It was submitted that on either of the above views the respondents had an evidentiary burden, which they had failed to discharge, to establish that before entering into the agreement they had considered and made a genuine pre-estimate of their likely loss. It is submitted the respondents had failed to adduce any such evidence; the only evidence they had adduced to the arbitrator being evidence which related to enquiries long after the parties had entered into the contract. It was submitted, therefore, that the respondents had merely sought to justify the figure of $3,000 per week ex post facto and had not, whether for themselves or in conjunction with the claimant, turned their minds to genuinely pre‑estimating their likely loss from the effects of delay by the builder.
The evidence does indicate that the contract was awarded to the claimant as a consequence of the calling of tenders by the architect. The sum of $3,000 per week for liquidated damages was stipulated in the tender documents. The claimants tender was in conformity with the tender documents. There was no suggestion, however, of any specific discussion between the parties to the contract, or their representatives, before they entered into the contract, about the provision proposed for liquidated damages. The contract as prepared and executed conformed with the tender documents as to liquidated damages and the sum of $3,000 per week.
The respondents, before the arbitrator and before me, submit, in effect, that the claimant's submission places an unjustified interpretation and emphasis on the notion of a genuine pre-estimate of loss, and that it fails to recognise and appreciate the full context of Lord Dunedin's statements in the Dunlop decision. In particular they pointed to the passage which follows the passage relied on for the claimant in which Lord Dunedin at 87 of the report said that:
"It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach"
which reflects of an illustration given by Lord Halsbury in Clydebank Engineering and Shipbuilding Co v Don Jose Ramos Yquierdo y Castaneda [1905] AC 6 at 10-11 (see also 17).

The respondents submit further that there is no authority (apart, that is from the way the claimant seeks to read, or read into, the words of Lord Dunedin noted earlier) for the propositions of the claimant that the parties need together to have considered and agreed on an estimate of the likely loss, or that the claimant has an evidentiary or any burden to establish that they themselves considered and estimated their likely loss before contract. It is to be observed that it is difficult indeed to reconcile the propositions of the claimant with many subsequent judicial statements such as those cited earlier from the High Court decisions AMEV-UDC and Esanda Finance Corporation Ltd v Plessing.
It is the effect of the respondents' submissions, both to the arbitrator and me, that the notion of an agreed genuine pre-estimate of loss as contemplated by Lord Dunedin is, as his Lordship expressly stated in the passage relied on by the claimant, to be determined as a "question of construction" of the contract, and is to be decided "upon the terms and inherent circumstances" of each particular contract; see Dunlop at 86 - 87. So viewed, in the respondents' submission, as the parties entered into the contract which expressly provided for the sum of $3,000 per week as "liquidated and ascertained damages", in the absence of something to the contrary being established, the notion of an agreed genuine pre-estimate of loss was sufficiently or prima facie established by the agreement itself. It therefore fell to the claimant, the respondents submit, to establish that the sum of $3,000 per week was not liquidated damages but a penalty, cf Multiplex Constructions Pty Ltd v Abgarus Pty Ltd (1992) 33 NSWLR 504 at 527, and to do this the claimant needed to show that the sum of $3,000 per week is extravagant, exorbitant or unconscionable; see Clydebank at 10‑11, Dunlop at 87, AMEV-UDC Finance Ltd v Austin at 190. This is to be viewed, of course, it is submitted, as at the date of the contract, not now; Dunlop at 87.
In this respect, it is to be noted, contrary to a submission for the claimant, that while in the Multiplex case the owners of the building in fact led a body of evidence to reveal how it had estimated its probable loss, it was not the view of Cole J that, as a matter of law, they had an evidentiary onus to do so. They chose to lead that evidence.
In this case evidence was placed before the arbitrator by both parties directed to the questions of the actual, or anticipated likely, loss of the respondents because of the delay in the completion of the works. The nature of this evidence varied and not all of it was in a very satisfactory form. For example, for the claimant a few newspaper advertisements were tendered for houses available for letting in the general area of the respondents' house at the time of the default. From the brief description of the houses in the advertisements it was sought to suggest that the advertised houses were comparable to the respondents' house (when completed) and therefore to rely on the advertised rentals, which were far below $3,000 per week, to establish that $3,000 per week was so extravagant as to be a penalty. Equally, for the respondents, a very brief letter from a firm of estate agents and valuers was proffered which asserted that an average return for residential homes in the Western Suburbs during 1997, ie at the time of contract, when rented, would be between 4‑6 per cent gross. From this, the respondents sought to support the figure of $3,000 per week as representing approximately a 5 per cent gross return on the value of the land ($1.3 million) and the house ($1.7 million). There was, however, other evidence of varying degrees of relevance and credibility to the real issues.
In particular, however, both before the arbitrator and me, the respondents relied on the legal proposition that the agreed figure of $3,000 per week was less than the, or a, proper measure of damages at common law for late completion of building works. Damages for delay, they submitted, might properly be assessed according to the costs of the funds tied up in the project during the period of overrun in the construction period where the project is not an income producing one, such as a domestic house. For this proposition they relied on Halsbury Laws of Australia para [65-1030] which does contain such a statement as one of two appropriate approaches to the assessment of damages in such a case, the other approach being the cost of alternative accommodation. In further support of this there was material placed before the arbitrator to establish the interest rates being charged for borrowed funds at the relevant time. These varied between 7.55 per cent and 10.85 per cent. There was also material to establish the value of the land on which the house was being constructed. From this, it was submitted that the cost of the funds tied up, ie in excess of $3 million in land and the building, would far exceed $3,000 per week even at the lowest available rate.

Arbitrator's reasons

The brief summary of the principle issues which has just been given is helpful to an understanding of the approach taken by the arbitrator in his reasons for the interim award. His approach appears to have been substantially guided by a desire to deal with the submissions advanced to him. Relevantly, having directed himself that the liquidated damages must be a genuine pre-estimate or calculation of the likely loss, the arbitrator went on to say:
"The submissions from the respondent do not convince me that the amount in the contract was a genuine pre-estimate as clearly the Architect and the Respondent do not agree upon how the value was derived.
While that detracts from the respondent's case I must also consider that the Contract states that the amount is Liquidated and Agreed Damages …"
A little later the arbitrator also said:
" … I cannot accept that the agreed sum is either extravagant or imposes an unconscionable burden upon the Claimant …
… There is no real argument to convince me that the amount claimed is any way excessive in view of the value of the residence and the likely losses incurred by the respondent …"
The claimant seeks to rely on the first of the paragraphs just quoted to show that it was found by the arbitrator that there was no genuine pre-estimate. It follows, it is submitted, that the $3,000 per week cannot be enforceable as liquidated damages so that the interim award of the arbitrator must involve an error of law. This submission requires acceptance, however, of the claimant's submissions in law which have been outlined earlier in these reasons.
I note that the difference between the statements of the architect and the respondents to which the arbitrator referred seems to be a reference contrasting a statement in a letter of the architect to the claimant in October 1998 where he said simply that the $3,000 per week represents less than 5 per cent in the cost of the house and land, and a conversation reported by a director of the claimant in which the first named respondent is said to have acknowledged he was in fact paying rent much less than $3,000 per week but the balance was to compensate him for the inconvenience. It will be obvious that there are a number of issues which bear on the relevance, validity and significance of any such comparison for present purposes. In particular the statement attributed to the first named respondent does not even purport to be a statement of the basis for the sum of $3,000 per week in the contract; it was apparently dealing with the situation which actually existed after the claimant had failed to complete the work by the contracted date.
In his reasons, the arbitrator did go on to observe that the $3,000 per week was a mutually agreed figure for Liquidated and Ascertained Damages and to hold that he could not accept that this figure was either extravagant or one which imposed an unconscionable burden having regard to the value of the residence and the likely loss.
While generally the submissions of the claimant as to the effect of the Dunlop decision were arguable, and indeed they were very persuasively argued before me, nevertheless, the submissions of the respondent which have been summarised earlier appeared to me to more correctly and sensibly reflect the state of the law.
In particular, it is my impression that the submissions for the claimant appear to fail to accord with the clear statement in the Dunlop decision that the issue falls to be determined as a matter of construction of the terms and the inherent circumstances of the contract, and to involve inconsistency with the notion of, and the terms of, the test for discerning a penalty propounded in that same decision. It also appears to place a somewhat constrained construction on the words "a genuine pre‑estimate" of damages, a construction which emphasises only one possible view of the intended meaning of those words when their context appears to suggest a less restrictive view.
Reference should be made to the first of the propositions propounded by Lord Dunedin in Dunlop at 86-8 which commences "Though the parties to a contract who use the words 'penalty' or 'liquidated damages' may prima facie be supposed to mean what they say, yet the expression is not conclusive. The Court must find out whether the payment stipulated is in truth a penalty or liquidated damages …" There is also the fourth proposition which identifies a number of tests to help with the task of construction, of which the first is the extravagant and unconscionable test. I find in the full context of Lord Dunedin's speech little to support the propositions for which the claimant now contends, propositions which are not supported by other authority and which cannot be readily reconciled with the reasoning in many later cases including the passages quoted earlier from AMEV-UDC and Esanda Finance Corporation Ltd v Plessing.
While, on an application of this nature, full and exhaustive argument has not been appropriate, it is my present view that, the parties having been shown to have agreed on a figure as liquidated and ascertained damages for a single form of breach, by each entering into the building contract containing those terms, it is for the claimant to establish, as a matter of both initial evidentiary and substantive onus, that the agreed figure is a penalty. The arbitrator, in his reasons for the interim award, in my view has sufficiently revealed that he appreciated this and, accordingly, turned his mind to the extravagant or unconscionable test formulated in the Dunlop decision but was not persuaded that the claimant had established its case that the amount of $3,000 per week was a penalty.
If this view be correct it would follow, of course, that in so far as the arbitrator temporarily considered the submission of the claimant that it was necessary for the respondents to satisfy an initial evidentiary onus, the arbitrator had entered upon an unnecessary enquiry. His reasons reveal, however, that the arbitrator then turned his mind to what appears to be the correct approach and reached his award accordingly.
Even though the evidence and submissions were widely varied, the proposition from Halsbury's Laws of Australia as to the, or an, appropriate approach to common law damages in a case of this nature, and the evidence as to the prevailing interest charges and the total capital sum invested in the project, provided a sufficient basis on which the arbitrator might properly have concluded that the sum of $3,000 per week had not been shown to be excessive in the relevant sense.
While I accept that in some respects, although not all that were advanced, the claimant has an arguable case, I am not persuaded that the claimant has demonstrated that the interim award was affected by "manifest error" (s 38(5)(b)(i)) or that there is "strong evidence of an error of law" (s 38(5)(b)(ii)). Despite the arguments so well advanced for the claimant, the preferable view appears to be that the decision arrived by the arbitrator accorded with the law, even though passages in his reasoning may be open to some criticism.
Further, for the purposes of s 38(5)(b)(ii), I am not persuaded therefore, that there is any general level of uncertainty as to the issues the claimant seeks to ventilate such that a decision on appeal in this case would be likely to add substantially to the certainty of commercial law.
As the claimant has failed to demonstrate that leave to appeal could be granted pursuant to s 38(5) of the Act, there is no need to consider, whether, even had that obstacle been overcome, leave should be granted as a matter of general discretion.
For these reasons I would refuse leave to appeal.