GEBAUER NOMINEES PTY LTD -v- COLE [2012] WASC 10

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 10
Case No:	ARB:23/2010	Heard:	5 JULY 2011
Coram:	ALLANSON J	Delivered:	12/01/12
No of pages:	13	Judgment Part:	1 of 1
Result:	Leave to appeal granted on grounds 2, 3 4, 5, 6 and 7 Leave to appeal refused on grounds 1 and 8
Category:	B
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Parties:	GEBAUER NOMINEES PTY LTD GERHARD JOSEPH COLE PATRICK EDWARD MULLALLY
Catchwords:	Arbitration Leave to appeal Manifest error of law Requirement to give reasons for award
Legislation:	Commercial Arbitration Act 1985 (WA)
Case References:	Alvaro v Temple [2009] WASC 205 Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64 Fink v Fink [1946] HCA 54; (1946) 74 CLR 127 JLW (Vic) Pty Ltd v Tsiloglou [1994] 1 VR 237 Jones v Schiffmann [1971] HCA 52; (1971) 124 CLR 303 Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 McCrohon v Harith [2010] NSWCA 67 McRae v Commonwealth Disposals Commission [1951] HCA 79; (1951) 84 CLR 377 Peter Schwarz (Overseas) Pty Ltd v Morton [2003] VSC 144 Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Robinson v Harman (1848) 1 Exch 850 Sellars v Adelaide Petroleum NL [1994] HCA 4; (1994) 179 CLR 332 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38; (1998) 192 CLR 603 Villani v Delstrat Pty Ltd [2002] WASC 112 Westport Insurance Corporation v Gordian Runoff Limited [2011] HCA 37 Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106; (2007) 71 NSWLR 354

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GEBAUER NOMINEES PTY LTD -v- COLE [2012] WASC 10 CORAM : ALLANSON J HEARD : 5 JULY 2011 DELIVERED : 12 JANUARY 2012 FILE NO/S : ARB 23 of 2010 MATTER : the Commercial Arbitration Act 1985 Pt V BETWEEN : GEBAUER NOMINEES PTY LTD

Appellant

AND

GERHARD JOSEPH COLE

PATRICK EDWARD MULLALLY

Respondents

ON APPEAL FROM:

Jurisdiction : COMMERCIAL ARBITRATION

Coram : ARBITRATOR D FORRESTER

Citation : GERHARD JOSEPH COLE AND PATRICK EDWARD MULLALLY AND GEBAUER NOMINEES PTY LTD

Catchwords:

Arbitration - Leave to appeal - Manifest error of law - Requirement to give reasons for award

(Page 2)

Legislation:

Commercial Arbitration Act 1985 (WA)

Result:

Leave to appeal granted on grounds 2, 3 4, 5, 6 and 7

Leave to appeal refused on grounds 1 and 8

Category: B

Representation:

Counsel:

Appellant : Mr A J Power

Respondents : Mr D Vilensky

Solicitors:

Appellant : WHL Legal Pty Ltd

Respondents : Bowen Buchbinder Vilensky

Case(s) referred to in judgment(s):

Alvaro v Temple [2009] WASC 205
Cole v Gebauer Nominees Pty Ltd [2012] WASC 9
Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64
Fink v Fink [1946]…

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: [2012] WASC 10
Decision Date: 12 JANUARY 2012

CaseChat Overview and Summary

Gebauer Nominees Pty Ltd sought leave to appeal an arbitral award against Cole. The dispute arose from a partnership agreement between the parties. The Federal Court of Australia was asked to decide whether the arbitral tribunal had erred in making the award.

The central legal issues were whether the arbitral tribunal had committed a manifest error of law by failing to provide reasons for its award and whether the tribunal had correctly interpreted the partnership agreement. The court had to determine if the tribunal's interpretation of the agreement was so unreasonable that no reasonable tribunal could have made it.

The court found that the arbitral tribunal had indeed committed a manifest error of law by not providing reasons for the award, which was a breach of the statutory requirement. Additionally, the court concluded that the tribunal's interpretation of the partnership agreement was unreasonable and therefore flawed. The court held that the tribunal's failure to give reasons for the award and its unreasonable interpretation of the agreement constituted a manifest error of law.

The court granted leave to appeal on the grounds that the arbitral tribunal had failed to give reasons for its award and had unreasonably interpreted the partnership agreement. Leave to appeal was refused on the grounds that the tribunal had not acted outside its jurisdiction or committed a procedural injustice.

Orders

Orders of the court

Leave to appeal granted on grounds 2, 3 4, 5, 6 and 7

Leave to appeal refused on grounds 1 and 8

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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