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Giles v GRS Constructions Pty Ltd

Giles v GRS Constructions Pty Ltd

Case [2001] SASC 274 8 August 2001

Appeal

Jurisdiction

Manifest Error of Law

Statutory Interpretation

Civil Litigation & Procedure

Arbitration Law

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GILES V GRS CONSTRUCTIONS PTY LTD ACN 008 174 614 TRADING AS “FEDERATION HOMES”
[2001] SASC 274

LANDER J. This is an application for leave to appeal from an interim award made by an arbitrator on 23 February 2001.
These proceedings have been brought on inter partes summons. The plaintiffs are the registered proprietors and occupiers of a home at 13 Sheaoak Drive, Mawson Lakes. The first defendant, GRS Constructions Pty Ltd (t/a Federation Homes) is a building contractor. The second defendant is the arbitrator. The proceedings seek the following relief:
“1That the Plaintiffs be granted leave to appeal the interim award of the Second Defendant (“the arbitrator”) dated 23 February 2001 (“the Award”) in the matter of Mr and Mrs Giles v Federation Homes (“the Dispute Reference”) pursuant to s 38 of the Commercial Arbitration Act 1986.
2That the award be wholly set aside and/or varied on the grounds of manifest error of law on the face of the award and misconduct.
3That the Plaintiffs have the costs of the Arbitration.
4That the Plaintiffs have the costs of and incidental to this Summons.
5Such further other orders as this Honourable Court deems fit.”
It can be seen that paragraph 1 of the inter partes summons seeks leave to appeal. Paragraph 2 seeks to have the award set aside on alternative grounds.
Ordinarily an application for leave to appeal is brought on an ex parte summons which is heard by a Judge in chambers: r 94.01A.
However in this case the plaintiffs not only seek leave to appeal but also seek to have the award set aside on the grounds stated in paragraph 2.
The first ground in paragraph 2 may support an application for leave to appeal under s 38 of the Commercial Arbitration Act 1986 (SA) (the Act). The second ground, i.e. misconduct, is a ground to set aside the award under s 42 or to remove an arbitrator under s 44 of the Act.
In this case I think the plaintiffs seek alternative remedies. First they seek leave to appeal under s 38 of the Act. Secondly, and in the alternative, they seek to have the award set aside on the ground of misconduct on the part of the arbitrator pursuant to s 42 of the Act.
The proceedings were served on the defendants both of whom have entered an appearance. On this application for leave to appeal the second defendant has advised the Court that he will abide the decision of the Court. The first defendant opposes the application for leave to appeal.
The parties agreed that the matter should proceed upon the basis that I will determine the question of leave independently of the plaintiffs’ proceedings under s 42 of the Act.
On this application I am therefore only concerned with an application for leave to appeal under s 38 of the Act.
The intent of the Commercial Arbitration Act is to treat an arbitral award as final: Pioneer Shipping Ltd v BTP Tioxide Ltd…

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 Giles v GRS Constructions Pty Ltd

Details

AGLC: Giles v GRS Constructions Pty Ltd [2001] SASC 274
Case: [2001] SASC 274
Decision Date: 8 August 2001

CaseChat Overview and Summary

The case of Giles v GRS Constructions Pty Ltd concerns an application for leave to appeal from an interim award made by an arbitrator in a dispute between the plaintiffs, who are the registered proprietors and occupiers of a home, and the first defendant, a building contractor, regarding the quality of the workmanship in the construction of the home. The second defendant is the arbitrator. The plaintiffs sought leave to appeal the interim award made by the arbitrator, claiming that the award contained manifest errors of law and constituted misconduct on the part of the arbitrator.

The primary legal issue before the court was whether the plaintiffs should be granted leave to appeal the arbitrator's decision under Section 38 of the Commercial Arbitration Act 1986 (SA). The court had to determine if the appeal was based on a question of law that could substantially affect the rights of one or more parties and if there was a manifest error of law on the face of the award or strong evidence that the arbitrator made an error of law and that the determination of the question may add to the certainty of commercial law.

The court found that the plaintiffs had not established a manifest error of law on the face of the award that could substantially affect their rights. Specifically, the court ruled that the arbitrator's refusal to exercise jurisdiction over the statutory warranties given by Section 32 of the Building Work Contractors Act 1995 (SA) did indeed evidence a manifest error of law. However, the court concluded that the plaintiffs were not disadvantaged because the arbitrator assessed the plaintiffs' loss by reference to quality standards applicable to a display home. The court also found that there was no manifest error in the arbitrator's assessment of damages for the loss of value of the home due to the absence of evidence, and the arbitrator had correctly applied the principles of law.

The court denied the plaintiffs leave to appeal the interim award, finding that the appeal did not meet the criteria for leave under Section 38 of the Commercial Arbitration Act 1986 (SA).

Orders