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

Link to Appeal :

[2005] WASCA 158 [2006] WASCA 175

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 158
Case No:	CIV:1111/2004	Heard:	28 MAY 2004
Coram:	COMMISSIONER ODES QC	Delivered:	14/07/04
No of pages:	32	Judgment 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
Category:	B
PDF Version

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…

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: [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.

Orders