GRD Kirfield Ltd v First Trade Consulting Pty Ltd

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GRD KIRFIELD LTD -v- FIRST TRADE CONSULTING PTY LTD [2004] WASC 158


Link to Appeal :

SUPREME COURT OF WESTERN AUSTRALIACitation No:[2004] WASC 158
Case No:CIV:1111/200428 MAY 2004
Coram:COMMISSIONER ODES QC14/07/04
32Judgment Part:1 of 1
Result: Leave to appeal granted, Appeal partly succeeds and partly dismissed, To be referred to the arbitrator for decision in terms of the reasons
B
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Parties:GRD KIRFIELD LTD (ACN 069 557 053)
FIRST TRADE CONSULTING PTY LTD (ACN 009 372 169)

Catchwords:

Arbitration
Leave to appeal
Commercial Arbitration Act 1985 (WA) s 38
Approach to be taken on legal issues determined by lay arbitrator
Appeal on questions of law
Legal principles to be followed

Legislation:

Commercial Arbitration Act 1985 (WA), s 38

Case References:

Anaconda Operations Pty Ltd v Fluor Australia Pty Ltd [2003] VSC 275
Australian Broadcasting Corp v XIVth Commonwealth Games (1988) 18 NSWLR 540
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Coal Cliff Collieries Pty Ltd v Sijahama Pty Ltd (1991) 24 NSWLR 1
Cosemar SA v Marimarna Shipping Co Ltd v Mattew [1990] 2 Lloyds Rep 323
Forsayth NL v Australasian Gold Mines NL (No 1) & Anor (1992) 7 WAR 549
Friend & Booker Pty Ltd v Eurobodalla Shire Council, unreported; NSWCA (Court of Appeal); 24 November 1993
Johnson Matthey Ltd v A C Rochester Overseas Corp (1990) 23 NSWLR 190
Lamac Developments Pty Ltd v Devaugh Pty Ltd (2002) 27 WAR 287
Larkin v Parole Board (1987) NSWLR 57
Masawa Australasia Pty Ltd v J Corp Pty Ltd [2000] WASC 5
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
R P Robinson Constructions Pty Ltd v D & M Williams (1990) 6 BCL 219
Roads Corporation v Dacakis [1995] 2 VR 508
Royal Botanic Gardens & Domain Trust v South Sydney City Council (2002) 186 ALR 289
Skinner & Edwards (Builders) Pty Ltd v Australian Telecommunications Corp (1992) 27 NSWLR 567
Tsakirolglou & Co Ltd v Noblee Thorl Gmbh [1962] AC 93
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221
Ukrainian Association of Western Australia in Perth (Inc) v Squire Constructions Pty Ltd [2004] WASC 4
Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32
Waterford v The Commonwealth (1987) 164 CLR 54

Gordon v MacGregor (1909) 8 CLR 316
Metwally v University of Wollongong (1985) 60 ALR 68
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231
Stirland v DPP [1944] AC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : GRD KIRFIELD LTD -v- FIRST TRADE CONSULTING PTY LTD [2004] WASC 158 CORAM : COMMISSIONER ODES QC HEARD : 28 MAY 2004 DELIVERED : 14 JULY 2004 FILE NO/S : CIV 1111 of 2004
    ARB 3 of 2004
    ARB 18 of 2003
MATTER : Section 38 of the Commercial Arbitration…
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Details
Case
[2004] WASC 158
Decision Date

CaseChat Overview and Summary

GRD Kirfield Ltd initiated an arbitration against First Trade Consulting Pty Ltd. The dispute centred on the interpretation of the terms of a building contract, specifically regarding the secondary funding arrangements, which involved subcontractors deferring payment in exchange for apartments in the project. The arbitrator found that there was an implied agreement for secondary funding by subcontractors, which the builder was obligated to facilitate. The builder disagreed and appealed the decision, arguing that the agreement was incomplete and unenforceable. The Supreme Court of Western Australia granted leave to appeal and partly upheld the appeal, finding that the arbitrator's conclusions on the secondary funding agreement constituted manifest errors of law. The court found that the implied agreement was incomplete and unenforceable, and that the builder was not obligated to produce a protocol for the secondary funding arrangements. The court also dismissed the appeal on the issue of the deeming provisions of the date of practical completion. The matter was remitted to the arbitrator for determination of the quantum of claims and the costs of the arbitration.

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Ratio Decidendi

Legal Principle Established

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