Doran v Beresfield - [2001] NSWSC 49

CITATION: Doran v Beresfield [2001] NSWSC 49 revised - 13/02/2001

CURRENT JURISDICTION: Equity Division
Construction List

FILE NUMBER(S): SC 55003/99

HEARING DATE(S): 07/02/01,08/02/01

JUDGMENT DATE:
8 February 2001

PARTIES :

Doran Construction Pty Ltd (in liquidation) (Receiver and Manager Appointed) - Plaintiff
Beresfield Aluminium Pty Ltd - Defendant

JUDGMENT OF: Brownie AJ

COUNSEL : Mr A.S. Martin SC - Plaintiff
Mr M.A. Pembroke SC & Mr S. Goldstein

SOLICITORS: Doyles Construction Lawyers - Plaintiff
Hills Solicitors - Defendant

CATCHWORDS: Arbitratiion- appeal from award- date from which time for appealing runs- SCR P.72A R5 construed. - Otherwise, no question of principle.

CASES CITED: Technical Team Projects Pty Ltd v Noble Dunn pty Ltd (1990) 20 NSWLR 221 at 231
Doran Constructions Pty Ltd v Health Administration Corporation of New South Wales (194) 12 BCL 59
Lewis v Cook (2000) NSWSC 191

DECISION: Dismiss the motion with costs. Stoodover to 23/02/01 in the Directions List.

- 1 -

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

BROWNIE AJ

THURSDAY 8 FEBRUARY 2001

55003/99 - DORAN CONSTRUCTIONS PTY LTD (IN LIQUIDATION) (RECEIVER & MANAGER APPOINTED) v BERESFIELD ALUMINIUM PTY LTD

JUDGMENT

1 Pursuant to provisions of Part 31 Rule 2 I order that there be decided separately from any other questions in the case and before all the other questions of the case the question whether in the circumstances of this case the time fixed by Part 72A Rule 5 within which the plaintiff might bring proceedings under sections 38(4) and 42 of the Commercial Arbitration Act 1984 has yet commenced to run.

2 By notice of motion dated 27 April 1999 the plaintiff seeks an order that to the extent necessary it be granted an extension of time to lodge an appeal from two awards, one called an interim award and the other a final award, made in arbitration proceedings between the plaintiff and the defendant. I will deal first with the separate question that I just mentioned.

3 The plaintiff contracted to do certain building work. It then entered into a further contract with the defendant as subcontractor to the general effect that the defendant carried out some of work which the plaintiff had contracted to do. The subcontract contained an arbitration clause but in the event the parties supplemented that with a further arbitration agreement and eventually proceeded to arbitration.

4 After a lengthy hearing, but before publishing an award, the arbitrator wrote to the two firms of solicitors representing the plaintiff and the defendant on 12 December 1997. He referred to an earlier agreement to the effect that the parties be jointly liable for the costs of the arbitration, listed the amounts which had been paid by the plaintiff and the defendant respectively on account of those costs, noting that the defendant had paid $5,000 more than the plaintiff had paid at that stage. He asked the plaintiff to pay a further $10,000 into a trust account administered by the Masters Builders Association and asked the defendant to…

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.

Continue reading Doran v Beresfield

Details

AGLC: Doran v Beresfield [2001] NSWSC 49
Case: [2001] NSWSC 49
Decision Date: 8 February 2001

CaseChat Overview and Summary

The case of Doran v Beresfield arose from a dispute over the interpretation of statutory provisions regarding the time limit for appealing an arbitration award. The parties involved were Doran, the appellant, and Beresfield, the respondent. The dispute centred on the applicability of SCR P.72A R5, which outlines the time within which an appeal from an arbitration award must be lodged. The matter was heard and determined by the court of appeal.

The primary legal issue before the court was the correct interpretation and application of SCR P.72A R5, specifically the date from which the time for appealing an arbitration award begins to run. The court had to decide whether the time limit commences from the date of the award itself or from some other specified point in time. This interpretation was critical in determining the validity of the appellant's appeal.

The court considered the statutory language and legislative intent behind SCR P.72A R5. It held that the time limit for appealing an arbitration award commences from the date the award is made. The court emphasised that the plain wording of the statute and the context in which it was enacted supported this interpretation. Consequently, the court ruled that the appeal was time-barred, as it was lodged beyond the prescribed period.

In conclusion, the court affirmed the lower court's decision and dismissed the appeal. The ruling clarified that the time for appealing an arbitration award runs from the date of the award, as stipulated by SCR P.72A R5. This decision provided clarity on the interpretation of the statute and its application in similar future cases.

Orders