Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd - [2005] QSC 322

SUPREME COURT OF QUEENSLAND

CITATION:

Discovery Beach Project P/L v Northbuild Construction P/L [2005] QSC 322

PARTIES:

DISCOVERY BEACH PROJECT PTY LTD
ACN 100 500 981
(applicant)
v
NORTHBUILD CONSTRUCTION PTY LTD
ACN 011 063 764
(respondent)

FILE NO/S:

BS 7831 of 2005
BS 7832 of 2005
BS 7834 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

4 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 October 2005

JUDGE:

de Jersey CJ

ORDERS:

The arbitrator’s award of 19 August 2005, determining that he had jurisdiction to hear and determine variation requests 71 as amended, and 75, is set aside1.

The arbitrator’s award dated 28 August 2005, determining that he had jurisdiction to hear and determine variation order 97, is set aside2.

Costs reserved, with liberty to apply3.

CATCHWORDS:

ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – WANT OF JURISDICTION AND EXCESS OF AUTHORITY – where a provision of the building contract between the parties provided for referral of disputes to arbitration – where the parties entered separate agreements, referring certain matters to experts for determination – where agreements were each conditional upon the consent of a financier, which was not expressly forthcoming – where nevertheless, the parties had proceeded consistently with the subsistence of the agreements – where, while the experts were seized of those matters, the respondent, purportedly acting under the building contract, referred them to arbitration – where the arbitrator made an award, determining that he had jurisdiction – whether the agreements referring issues for expert determination were subject to a condition precedent which was not fulfilled – whether the arbitrator made the award without jurisdiction – whether the award amounted to misconduct on the part of an arbitrator – whether to justify setting aside an award, the error of law relied on must appear ex facie

ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – PROCEDURE – APPEALS AND LEAVE TO APPEAL – LEAVE TO APPEAL FROM DECISION OF ARBITRATOR – QUESTION OR ERROR OF LAW – whether, alternatively, the court should grant the applicant leave to appeal against the arbitrator’s determinations

Commercial Arbitration Act 1990 (Qld), s 8, s 38, s 43

Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153
Consolidated Constructions Pty Ltd v Saipem Australia Pty Ltd (1999) 15 BCL 64
Hodgkinson v Fernie (1857) 3 CBNS 189
Kennedy-Taylor (Qld) Pty Ltd v Civil and Civic Pty Ltd, unreported, Court of Appeal, Qld, No 17 of 1994, 2 November 1994
Kent v Elstob (1802) 3 East 18
Re Scibilia & Lejo Holdings Pty LtdArbitration (1985) 1 Qd R 94

COUNSEL:

P H Morrison QC, with P Hastie, for the applicant
P Dunning for the respondent

SOLICITORS:

Minter Ellison for the applicant
Ebsworth & Ebsworth for the respondent

Introduction

On 23 May 2003, the applicant (“Discovery Beach”) and the respondent (“Northbuild”) entered into a building contract in relation to the Surfair…

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.

Keep reading for free

Create a free CaseChat account to read Discovery Beach Project Pty Ltd v Northbuild Construction Pt... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] QSC 322
Decision Date: 4 November 2005

CaseChat Overview and Summary

The case of Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd involves a dispute between the parties concerning the jurisdiction of an arbitrator and the validity of an arbitration award. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether the arbitrator had jurisdiction to make the awards in question, given that there were separate agreements between the parties that referred certain disputes to experts for determination, contingent upon the consent of a financier that was not expressly given. Additionally, the court had to consider whether the awards amounted to misconduct on the part of the arbitrator and whether the errors of law relied on to set aside the awards were apparent on the face of the record.

The court found that the agreements referring issues for expert determination were indeed subject to the condition precedent of the financier’s consent, which was not fulfilled. However, the court held that despite this, the parties had proceeded consistently with the agreements being in effect. The court also found that the arbitrator had made the awards without jurisdiction, as he had proceeded to hear the matters despite the existence of the expert determination agreements. Furthermore, the court concluded that the errors of law were apparent on the face of the awards, justifying their setting aside. Consequently, the awards were set aside, and the court reserved costs with liberty to apply.

The court declined to grant leave to appeal against the arbitrator’s determinations, finding that the question or error of law did not warrant such an appeal. The final orders of the court were to set aside the arbitrator’s awards of 19 August 2005 and 28 August 2005 and to reserve costs with liberty to apply.

Orders

Orders of the court

The arbitrator’s award of 19 August 2005, determining that he had jurisdiction to hear and determine variation requests 71 as amended, and 75, is set aside1.

The arbitrator’s award dated 28 August 2005, determining that he had jurisdiction to hear and determine variation order 97, is set aside2.

Costs reserved, with liberty to apply3.

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 P/L v Northbuild Construction P/L [2005] QSC 322
PARTIES:	DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981 (applicant) v NORTHBUILD CONSTRUCTION PTY LTD ACN 011 063 764 (respondent)
FILE NO/S:	BS 7831 of 2005 BS 7832 of 2005 BS 7834 of 2005
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Brisbane
DELIVERED ON:	4 November 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28 October 2005
JUDGE:	de Jersey CJ
ORDERS:	The arbitrator’s award of 19 August 2005, determining that he had jurisdiction to hear and determine variation requests 71 as amended, and 75, is set aside1. The arbitrator’s award dated 28 August 2005, determining that he had jurisdiction to hear and determine variation order 97, is set aside2. Costs reserved, with liberty to apply3.
CATCHWORDS:	ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – WANT OF JURISDICTION AND EXCESS OF AUTHORITY – where a provision of the building contract between the parties provided for referral of disputes to arbitration – where the parties entered separate agreements, referring certain matters to experts for determination – where agreements were each conditional upon the consent of a financier, which was not expressly forthcoming – where nevertheless, the parties had proceeded consistently with the subsistence of the agreements – where, while the experts were seized of those matters, the respondent, purportedly acting under the building contract, referred them to arbitration – where the arbitrator made an award, determining that he had jurisdiction – whether the agreements referring issues for expert determination were subject to a condition precedent which was not fulfilled – whether the arbitrator made the award without jurisdiction – whether the award amounted to misconduct on the part of an arbitrator – whether to justify setting aside an award, the error of law relied on must appear ex facie ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – PROCEDURE – APPEALS AND LEAVE TO APPEAL – LEAVE TO APPEAL FROM DECISION OF ARBITRATOR – QUESTION OR ERROR OF LAW – whether, alternatively, the court should grant the applicant leave to appeal against the arbitrator’s determinations Commercial Arbitration Act 1990 (Qld), s 8, s 38, s 43 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Consolidated Constructions Pty Ltd v Saipem Australia Pty Ltd (1999) 15 BCL 64 Hodgkinson v Fernie (1857) 3 CBNS 189 Kennedy-Taylor (Qld) Pty Ltd v Civil and Civic Pty Ltd, unreported, Court of Appeal, Qld, No 17 of 1994, 2 November 1994 Kent v Elstob (1802) 3 East 18 Re Scibilia & Lejo Holdings Pty LtdArbitration (1985) 1 Qd R 94
COUNSEL:	P H Morrison QC, with P Hastie, for the applicant P Dunning for the respondent
SOLICITORS:	Minter Ellison for the applicant Ebsworth & Ebsworth for the respondent