Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd - [2010] QCA 363

SUPREME COURT OF QUEENSLAND

CITATION:

Discovery Beach Pty Ltd v Northbuild Construction Pty Ltd [2010] QCA 363

PARTIES:

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

FILE NO/S:

Appeal No 4621 of 2010
SC No 10086 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2010

JUDGES:

Margaret McMurdo P and Muir JA and Cullinane J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The appeal be allowed with costs.1.

The declaration numbered 1 in the 27 April 2010 Order be deleted and the following declaration be inserted in its place:2.

"… that insofar as the question of the termination by DBP of the August Agreement is relevant to the Arbitrator's determination, the August Agreement should be regarded as continuing to operate."

The declaration numbered 2 in the 27 April 2010 Order be set aside.3.

The declaration numbered 4 in the 27 April 2010 Order be varied by deleting "and VO 102" and by deleting "those terms are" and inserting in lieu thereof "that term is".4.

Paragraph 5(b) of the 27 April 2010 Order be deleted.5.

Paragraph 6 of the 27 April 2010 Order be varied by inserting before "paragraph 5" the words and letters "sub-paragraphs (a), (c) and (d) of".6.

Paragraph 8 of the 27 April 2010 Order be varied by excluding from it reference to VO 102.7.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – primary judge found an agreement between the parties under an Award had not been terminated – finding led primary judge to conclude that there was a manifest error of law on the face of the Award – appellant submitted that it was not common ground that the agreement had not been terminated – whether primary judge’s finding was erroneous – whether there was a manifest error of law

ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – appellant agreed in a clause to a building contract not to make claims or deductions from amounts payable to the respondent unless by consent or through resolution of the dispute by “expert determination or litigation” – arbitrator in interim award mistakenly construed the clause as stating “expert determination, arbitration or litigation” – appellant submitted that respondent was prevented from challenging the arbitrator’s construction of the clause – whether parties are bound by the arbitrator’s construction of the clause

ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – arbitrator held that he had no jurisdiction to determine a variation order as it was not within the scope of the reference to arbitration – primary judge held that the variation order was before the arbitrator – whether primary judge erred in concluding that the variation order was before the arbitrator for determination

Commercial Arbitration Act

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: [2010] QCA 363
Decision Date: 17 December 2010

CaseChat Overview and Summary

In the case of Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd, the primary dispute arose from a construction contract and subsequent arbitration. The appellant, Discovery Beach Project, challenged an award made by an arbitrator in the construction contract between the parties. The appellant argued that the arbitrator had made several errors in interpreting the contract and in the scope of the arbitration. The court was tasked with determining whether these errors amounted to a manifest error of law, warranting judicial review.

The legal issues before the court centred on whether the primary judge's finding that a certain agreement had not been terminated was erroneous, and whether there was a manifest error of law in the arbitrator's interpretation of the contract clause and the scope of the arbitration. The appellant argued that there was no common ground that the agreement had not been terminated, and that the arbitrator had incorrectly interpreted a clause in the contract regarding the resolution of disputes. Additionally, the appellant contested the arbitrator's finding that he lacked jurisdiction to determine a variation order, arguing instead that the primary judge had erred in concluding that the variation order was before the arbitrator.

The court found that the primary judge had not erred in concluding that the agreement had not been terminated. The court also held that the parties were bound by the arbitrator's construction of the clause in question, despite it being mistaken. Regarding the scope of the arbitration, the court determined that the primary judge had not erred in concluding that the variation order was before the arbitrator for determination. The court further found that the arbitrator's errors did not amount to a manifest error of law, but rather were errors of fact or mixed fact and law.

The appeal was allowed with costs. The court ordered various amendments to the 27 April 2010 Order, including deleting and varying certain declarations and paragraphs to accurately reflect the findings and conclusions of the court.

Orders

Orders of the court

The appeal be allowed with costs.1.

The declaration numbered 1 in the 27 April 2010 Order be deleted and the following declaration be inserted in its place:2.

"… that insofar as the question of the termination by DBP of the August Agreement is relevant to the Arbitrator's determination, the August Agreement should be regarded as continuing to operate."

The declaration numbered 2 in the 27 April 2010 Order be set aside.3.

The declaration numbered 4 in the 27 April 2010 Order be varied by deleting "and VO 102" and by deleting "those terms are" and inserting in lieu thereof "that term is".4.

Paragraph 5(b) of the 27 April 2010 Order be deleted.5.

Paragraph 6 of the 27 April 2010 Order be varied by inserting before "paragraph 5" the words and letters "sub-paragraphs (a), (c) and (d) of".6.

Paragraph 8 of the 27 April 2010 Order be varied by excluding from it reference to VO 102.7.

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 Pty Ltd v Northbuild Construction Pty Ltd [2010] QCA 363
PARTIES:	DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981 (respondent/appellant) v NORTHBUILD CONSTRUCTION PTY LTD ACN 011 063 764 (applicant/respondent)
FILE NO/S:	Appeal No 4621 of 2010 SC No 10086 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2010
JUDGES:	Margaret McMurdo P and Muir JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The appeal be allowed with costs.1. The declaration numbered 1 in the 27 April 2010 Order be deleted and the following declaration be inserted in its place:2. "… that insofar as the question of the termination by DBP of the August Agreement is relevant to the Arbitrator's determination, the August Agreement should be regarded as continuing to operate." The declaration numbered 2 in the 27 April 2010 Order be set aside.3. The declaration numbered 4 in the 27 April 2010 Order be varied by deleting "and VO 102" and by deleting "those terms are" and inserting in lieu thereof "that term is".4. Paragraph 5(b) of the 27 April 2010 Order be deleted.5. Paragraph 6 of the 27 April 2010 Order be varied by inserting before "paragraph 5" the words and letters "sub-paragraphs (a), (c) and (d) of".6. Paragraph 8 of the 27 April 2010 Order be varied by excluding from it reference to VO 102.7.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – primary judge found an agreement between the parties under an Award had not been terminated – finding led primary judge to conclude that there was a manifest error of law on the face of the Award – appellant submitted that it was not common ground that the agreement had not been terminated – whether primary judge’s finding was erroneous – whether there was a manifest error of law ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – appellant agreed in a clause to a building contract not to make claims or deductions from amounts payable to the respondent unless by consent or through resolution of the dispute by “expert determination or litigation” – arbitrator in interim award mistakenly construed the clause as stating “expert determination, arbitration or litigation” – appellant submitted that respondent was prevented from challenging the arbitrator’s construction of the clause – whether parties are bound by the arbitrator’s construction of the clause ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – arbitrator held that he had no jurisdiction to determine a variation order as it was not within the scope of the reference to arbitration – primary judge held that the variation order was before the arbitrator – whether primary judge erred in concluding that the variation order was before the arbitrator for determination Commercial Arbitration Act