Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd - [2005] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DECOR CEILINGS PTY LTD v COX CONSTRUCTIONS PTY LTD
Judgment of The Honourable Justice Besanko
15 April 2005
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA
ARBITRATION - THE AWARD - APPEAL OR JUDICIAL REVIEW - POWERS OF COURT
Application by appellant for an order striking out a notice of contention filed by respondent - where appellant and respondent were parties to an arbitration - where both parties appealed against the arbitration award - where leave to appeal was granted to the appellant but not to the respondent - where respondent filed a notice of contention in the appellant's appeal challenging various aspects of the arbitration award - whether the notice of contention is an abuse of process - whether the notice of contention contravenes s 38 of the Commercial Arbitration Act 1986 - whether the notice of contention is authorised by the Supreme Court Rules 1987 - held that the notice of contention is not an abuse of process - held that a respondent may file a notice of contention raising a question of law, providing it is raised in a purely defensive way and is not dependent on a challenge to findings of fact made by the arbitrator - application allowed and notice of contention struck out, but respondent given liberty to apply to file a new notice of contention consistent with these reasons.
Commercial Arbitration Act 1986 s 38; Arbitration Act 1979 (UK) s 1; Supreme Court Rules 1987 rr 3, 97, 120; Civil Procedure Rules (UK) RSC Ord 73 r 5, referred to.
Decor Ceilings Pty Ltd v Cox Constructions Pty Ltd 545/04; Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd 566/04 [2004] SASC 243; Promenade Investments Pty Ltd v New South Wales (1991) 26 NSWLR 203; Leighton Contractors Pty Ltd v South Australian Superannuation Fund Investment Trust (1994) 63 SASR 444; Natoli v Walker (Unreported, NSW Court of Appeal, 26 May 1994, judgment no 40351); Sabemo (SA) Pty Ltd v AIW Engineering Pty Ltd (1992) 9 BCL 280; Vitol SA v Norelf Ltd [1994] 1 WLR 1390; Vitol SA v Norelf Ltd (The Santa Clara) [1996] QB 108; Vitol SA v Norelf Ltd (The Santa Clara) [1996] AC 800, considered.

DECOR CEILINGS PTY LTD v COX CONSTRUCTIONS PTY LTD
[2005] SASC 146
Civil

BESANKO J: This is an application by the appellant for an order striking out a notice of contention filed by the respondent in an appeal proceeding in this Court. The appeal is brought by the appellant pursuant to leave granted under s 38 of the Commercial Arbitration Act 1986 (“CAA”). The respondent filed a notice of contention in the appeal on 25^th October 2004 and the appellant seeks an order striking out that notice.
The appellant is Décor Ceilings Pty Ltd (“Décor Ceilings”) and it was a party to an arbitration in which an interim award was made by…

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.

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Details

Case: [2005] SASC 146
Decision Date: 15 April 2005

CaseChat Overview and Summary

Decor Ceilings Pty Ltd, the appellant, filed an application seeking an order to strike out a notice of contention filed by Cox Constructions Pty Ltd, the respondent, in the context of an ongoing arbitration dispute. The matter was heard in the Supreme Court of South Australia. The appellant and respondent had both appealed against an arbitration award, with the appellant's leave to appeal being granted but the respondent's denied. Despite this, the respondent filed a notice of contention in the appellant's appeal, challenging various aspects of the arbitration award. The appellant argued that the notice of contention was an abuse of process, in contravention of section 38 of the Commercial Arbitration Act 1986 and not authorised by the Supreme Court Rules 1987.

The court considered whether the notice of contention constituted an abuse of process and whether it contravened the statutory and procedural provisions cited. The court found that the notice of contention was not an abuse of process, as a respondent may file such a notice raising a question of law, provided it is raised in a purely defensive manner and does not depend on challenging findings of fact made by the arbitrator. The court also held that the notice of contention was not in contravention of the cited provisions.

The court decided to strike out the notice of contention but granted the respondent liberty to apply within ten days to file a new notice of contention, provided it complied with the court's reasoning. The court also directed that it would hear the parties regarding costs and any other appropriate orders. The decision underscores the balance between the rights of parties in arbitration appeals and the need to maintain procedural fairness and integrity.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the circumstances I propose to strike out the notice of contention but to give the respondent liberty to apply within 10 days to file a new notice of contention consistent with these reasons.Conclusion I will make the following orders:1The Notice of Alternative Contentions filed by the respondent on 25th October 2004 is struck out.2The respondent is at liberty to apply within 10 days for leave to file a new notice of contention consistent with these reasons. I will hear the parties as to costs and any other appropriate orders.

Ratio Decidendi

Legal Principle Established

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