Gebauer Nominees Pty Ltd v Cole as Trustee for the Hotrox Charcoal Unit Trust t/as Hotrox Charcoal Company

Gebauer Nominees Pty Ltd sought relief in relation to an interim award made by an arbitrator, Mr D A Forrester. The applicant, Gebauer Nominees, sought leave to appeal against the award and to set aside the award on the grounds of misconduct. The applicant's main contention was that the arbitrator had erred in allowing the description of the respondent to be changed from Hotrox Charcoal Company to Gerhard Joseph Cole as Trustee for The Hotrox Charcoal Unit Trust trading as Hotrox Charcoal Company. The applicant contended that this ruling deprived it of its remedies against Mullally and its ability to enforce any award of costs in its favour against him. The applicant argued that the ruling amounted to the substitution of a new party and thus exceeded the power conferred upon the arbitrator by s 30 of the Commercial Arbitration Act to correct "a material mistake in the description of any person". The applicant further contended that the arbitrator misapprehended the issues and thereby misconducted the proceedings. The applicant argued that the arbitrator had no jurisdiction to entertain an application from Cole to be named as the claimant, when the true claimant was Cole and Mullally. The applicant also argued that the arbitrator was functus officio having made an interim award as to liability on 1 May 2000 binding upon Cole and Mullally such that he could not alter the terms or effect of that interim award by changing the identity of the claimant. The court found that the arbitrator had indeed erred in the manner in which he arrived at the conclusions reflected in his formal orders. The court allowed leave to appeal and the appeal against the orders in question. The applicant's application for relief pursuant to s 42 of the Commercial Arbitration Act was also allowed upon the basis that the arbitrator misconducted the proceedings. The appropriate form of relief was to set aside the orders in question upon the basis that the matter was to be remitted to the arbitrator for reconsideration.