Haridemos v Labathas - [2015] ACTSC 110

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Haridemos v Labathas
Citation:	[2015] ACTSC 110
Hearing Date:	30 April 2015
DecisionDate:	27 May 2015
Before:	Mossop AsJ
Decision:	The proceedings are dismissed with costs
Category:	Principal Judgment
Catchwords:	ARBITRATION – Domestic building dispute – referral to expert determination by written agreement of parties – provision in written agreement for appeal from expert determination under Commercial Arbitration Act 1986 (ACT) – whether parties agreed to dispute resolution process of expert determination or arbitration – parties agreed to expert determination – Court has no jurisdiction under the Act
Legislation Cited:	Building and Construction Industry (Security of Payment) Act 2009 (ACT) Commercial Arbitration Act 1986 (ACT)
Cases Cited:	Ajzner v Cartonlux Pty Ltd [1972] VR 919 Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd [1989] 1 Qd R 8 Foote v Barton Property Partnership No 2 [2014] ACTSC 330 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2007] QSC 206 Re Dawdy & Hartcup (1885) 15 QBD 426 Re Hammond & Waterton (1890) 62 LT (NS) 808 Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150
Parties:	George Michael Haridemos (Plaintiff) Mary Labathas (Defendant)
Representation:	Solicitors Tuggeranong Legal (Plaintiff) Kamy Saeedi Law (Defendant)
File Number(s):	SC 537 of 2014

Introduction

By originating application filed 17 November 2014 the plaintiff, a builder, seeks leave under s 38 of the Commercial Arbitration Act 1986 (ACT) (CA Act) to appeal on a question of law from a decision concerning a dispute between the parties.

The background to the application is that by contracts dated 6 and 7 December 2012 the plaintiff agreed with the defendant to construct two new residences (in addition to the existing residences) on two properties in McKellar. The plaintiff made payment claims and made applications for adjudication under the Building and Construction Industry (Security of Payment) Act 2009 (ACT). That led to the issuing of adjudication certificates under the Act. It appears that those adjudication certificates were then registered as judgments in the ACT Magistrates Court. The defendant disputed the validity of those certificates and caused an appeal process to be initiated. The parties then agreed to attempt to resolve their disputes in accordance with a deed executed on 16 April 2014 (Settlement Deed). In the Settlement Deed the parties agreed to consent orders to finalise the appeal proceedings which had been set in train. The parties then agreed in clause 5 on a process for resolution of the underlying dispute. Clause 5 provided as follows:

5. Expert Determination
5.1 The 5 Bednall Place Judgment is stayed and unenforceable prior to the Expert providing a determination.
5.2 The parties agree that the Expert will be appointed to provide his expert opinion on the value of the works undertaken by [the plaintiff] on the terms attached and marked Schedule B.
5.3 The parties agree to be bound…

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: [2015] ACTSC 110
Decision Date: 27 May 2015

CaseChat Overview and Summary

In Haridemos v Labathas, the Federal Court was asked to determine the appropriate dispute resolution process for a domestic building dispute between Haridemos and Labathas. The parties had entered into a written agreement that included a clause referring any disputes to expert determination and also a clause permitting an appeal from the expert's determination under the Commercial Arbitration Act 1986 (ACT). The primary issue before the Court was whether the parties had agreed to resolve their disputes through expert determination alone or whether they had also agreed to arbitration, which would give the Court jurisdiction to hear appeals from the expert's determination.

The Court held that the written agreement clearly indicated the parties' intention to resolve their disputes through expert determination, and there was no agreement to resolve disputes through arbitration. The Court found that the provision for an appeal from the expert's determination did not constitute an agreement to arbitrate, as it did not provide for the resolution of disputes by an arbitrator. Instead, the appeal provision was merely a mechanism for reviewing the expert's determination in a court of law. Since the Court found that there was no agreement to arbitrate, it concluded that it did not have jurisdiction under the Commercial Arbitration Act 1986 (ACT) to hear the appeal.

Accordingly, the Court dismissed the proceedings with costs. The Court emphasised that the parties' written agreement was clear in its terms, and it was not for the Court to rewrite the agreement to include an arbitration clause. The Court found that the proper course was to respect the parties' original intentions as expressed in their written agreement and to dismiss the appeal for lack of jurisdiction.

Orders

Orders of the court

The proceedings are dismissed with costs

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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