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Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd

Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd

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Case Copied 19 October 2011 64 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306

PARTIES:

DISCOVERY BEACH PROJECT PTY LTD
ACN 100 500 981
(applicant)

v

NORTHBUILD CONSTRUCTION PTY LTD
ACN 011 063 764
(respondent)

FILE NO:

2540 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

19 October 2011

DELIVERED AT:

Brisbane

HEARING DATE:

4 and 5 October 2011

JUDGE:

Applegarth J

ORDERS:

1.    It is declared that the claims pleaded by the       respondent in the Amended Points of Claim dated       13 March 2007 in an arbitration before Mr Warren       Fischer (the arbitrator) referred to as “the Final       Claim Arbitration” at:

      (a)    paragraph 15.2(f)(viii): Item 8 – Notice of   deduction of liquidated damages;

      (b)    paragraph 15.2(f)(x): Items 10 and 11 –   Failure to prove extensions of time and   prolongation claims; and

      (c)     paragraph 15.2(f)(xi): Item 12 – Legal costs   associated with breaches of contract

      have been determined by the arbitrator by the       making of an award described as the Final Claim       Interim Award and dated 14 August 2009.

2.    Paragraphs 3 and 4 of the Amended Originating       Application are adjourned to a date to be fixed.

CATCHWORDS:

ARBITRATION – THE AWARD – EFFECT AND PERFORMANCE – CONCLUSIVENESS OF AWARD – where applicant and respondent had referred various disputes to either arbitration or expert determination arbitrations of building dispute – where arbitrator in a “Final Claim Arbitration” provided for an interim award that would decide all disputes not already in other fora – where arbitrator directed that pleadings, lists of disputes in other fora, and lists of remaining claims be delivered for the purpose of hearing the interim award – where respondent included certain breach of contract claims in its pleadings and included these claims in a table of items to be decided by the interim award – where respondent did not adduce any evidence in support of breach of contract claims or address them in submissions – whether breach of contract claims were determined by the interim award

Commercial Arbitration Act 1990 (Qld), s 28

ABB Service Pty Ltd v Pyrmont Light Rail Company Ltd (2010) 77 NSWLR 321; [2010] NSWSC 831, followed
Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2010] QCA 363, cited
Excomm Ltd v Guan Guan Shipping (Pte) Ltd (The “Golden Bear”) [1987] 1 Lloyd’s Rep 330, cited
Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, applied
Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, cited
Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345, cited
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, [1981] HCA 45, cited
Re Resort Condominiums International Inc [1995] 1 Qd R 406, cited
SL Sethia Liners Ltd v Naviagro Maritime Corporation (The “Kostas Melas”) [1981] 1 Lloyd’s Rep 18, discussed
Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37, cited
W. J. Allan…

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: [2011] QSC 306
Decision Date: 19 October 2011

CaseChat Overview and Summary

In the case of Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd, the applicant and respondent had entered into a construction contract which included a clause for the resolution of disputes through arbitration or expert determination. Various disputes arose, and the parties referred these to arbitration or expert determination. In the "Final Claim Arbitration," an arbitrator issued an interim award intended to decide all disputes not already in other forums. The respondent included certain breach of contract claims in its pleadings, and these claims were listed in the table of items to be decided by the interim award. However, the respondent did not adduce any evidence in support of these breach of contract claims nor address them in its submissions.

The primary legal issue before the court was whether the breach of contract claims had been determined by the arbitrator through the interim award, despite the respondent's failure to present evidence or address these claims in its submissions. The court had to determine the effect of the interim award on the breach of contract claims and whether the arbitrator's decision was conclusive and binding on the parties. The court examined the procedural fairness, the arbitrator's authority, and the principle of finality inherent in arbitral awards.

The court held that the interim award made by the arbitrator was binding and conclusive on the parties, and the breach of contract claims were determined by the award. The court found that the respondent's failure to present evidence or address the claims in its submissions did not detract from the binding nature of the award. The court emphasised that the interim award was a binding resolution of the disputes listed in the table of items, and the arbitrator's decision was final and conclusive. The court also noted that the principle of finality of arbitral awards supports the binding nature of the interim award, even if one party did not address certain claims in its submissions.

In conclusion, the court declared that the breach of contract claims pleaded by the respondent were determined by the arbitrator in the interim award. The court's decision upheld the binding and conclusive nature of arbitral awards and reinforced the principle of finality in dispute resolution. The court's orders declared that the specified breach of contract claims had been determined by the interim award and adjourned further proceedings pending further instructions.

Orders

Orders of the court

1. It is declared that the claims pleaded by the respondent in the Amended Points of Claim dated 13 March 2007 in an arbitration before Mr Warren Fischer (the arbitrator) referred to as “the Final Claim Arbitration” at:

(a) paragraph 15.2(f)(viii): Item 8 – Notice of deduction of liquidated damages;

(b) paragraph 15.2(f)(x): Items 10 and 11 – Failure to prove extensions of time and prolongation claims; and

have been determined by the arbitrator by the making of an award described as the Final Claim Interim Award and dated 14 August 2009.

2. Paragraphs 3 and 4 of the Amended Originating Application are adjourned to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2011] QSC 306
PARTIES:	DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981 (applicant) v NORTHBUILD CONSTRUCTION PTY LTD ACN 011 063 764 (respondent)
FILE NO:	2540 of 2010
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	19 October 2011
DELIVERED AT:	Brisbane
HEARING DATE:	4 and 5 October 2011
JUDGE:	Applegarth J
ORDERS:	1. It is declared that the claims pleaded by the respondent in the Amended Points of Claim dated 13 March 2007 in an arbitration before Mr Warren Fischer (the arbitrator) referred to as “the Final Claim Arbitration” at: (a) paragraph 15.2(f)(viii): Item 8 – Notice of deduction of liquidated damages; (b) paragraph 15.2(f)(x): Items 10 and 11 – Failure to prove extensions of time and prolongation claims; and (c) paragraph 15.2(f)(xi): Item 12 – Legal costs associated with breaches of contract have been determined by the arbitrator by the making of an award described as the Final Claim Interim Award and dated 14 August 2009. 2. Paragraphs 3 and 4 of the Amended Originating Application are adjourned to a date to be fixed.
CATCHWORDS:	ARBITRATION – THE AWARD – EFFECT AND PERFORMANCE – CONCLUSIVENESS OF AWARD – where applicant and respondent had referred various disputes to either arbitration or expert determination arbitrations of building dispute – where arbitrator in a “Final Claim Arbitration” provided for an interim award that would decide all disputes not already in other fora – where arbitrator directed that pleadings, lists of disputes in other fora, and lists of remaining claims be delivered for the purpose of hearing the interim award – where respondent included certain breach of contract claims in its pleadings and included these claims in a table of items to be decided by the interim award – where respondent did not adduce any evidence in support of breach of contract claims or address them in submissions – whether breach of contract claims were determined by the interim award Commercial Arbitration Act 1990 (Qld), s 28 ABB Service Pty Ltd v Pyrmont Light Rail Company Ltd (2010) 77 NSWLR 321; [2010] NSWSC 831, followed Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2010] QCA 363, cited Excomm Ltd v Guan Guan Shipping (Pte) Ltd (The “Golden Bear”) [1987] 1 Lloyd’s Rep 330, cited Henderson v Henderson (1843) 3 Hare 100, 67 ER 313, applied Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, cited Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2009] QCA 345, cited Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, [1981] HCA 45, cited Re Resort Condominiums International Inc [1995] 1 Qd R 406, cited SL Sethia Liners Ltd v Naviagro Maritime Corporation (The “Kostas Melas”) [1981] 1 Lloyd’s Rep 18, discussed Westport Insurance Corporation v Gordian Runoff Ltd [2011] HCA 37, cited W. J. Allan…