Hassell v Silent Vector Pty Ltd t/a SIZER HOMES - [2002] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HASSELL & ANOR -v- SILENT VECTOR PTY LTD t/a SIZER HOMES [2002] WASC 250

CORAM: BARKER J

HEARD: 17 OCTOBER 2002

DELIVERED : 4 NOVEMBER 2002

FILE NO/S: ARB 14 of 2002

BETWEEN: IAN ROBERT HASSELL
CHRISTINE ANNE HASSELL
Applicants
AND
SILENT VECTOR PTY LTD t/a SIZER HOMES
Respondent

Catchwords:

Commercial arbitration - Application for leave to appeal - Error of law - Whether "manifest" or "strong evidence" as to - Effect of "making good defects" clause on common law right to claim damages

Legislation:

Commercial Arbitration Act 1985 (WA), s 38

Result:

Leave to appeal granted

Category: B

Representation:

Counsel:

Applicants: Mr P G McGowan
Respondent: Mr M J Hawkins

Solicitors:

Applicants: Kevin Burgoyne
Respondent: Godfrey Virtue & Co

Case(s) referred to in judgment(s):

Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
Qantas Airways Ltd v Joseland & Gilling (1986) NSWLR 327
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd [2000] WASC 57; (2000) 22 WAR 221

Case(s) also cited:

Leighton Contractors Pty Ltd v Kilpatrick Green Pty Ltd [1992] 2 VR 505
Roberts v Roberts (1982) 8 WAR 170

BARKER J: This is an application for leave to appeal against part of an Arbitrator's award.

The requirement for leave to appeal

Section 38(4) of the Commercial Arbitration Act 1985 (WA) permits an appeal to the Supreme Court on any question of law arising out of an award where the other parties to the arbitration agreement consent or, subject to s 40, the Supreme Court grants leave. In this case, the other party to the arbitration agreement does not consent to the appeal. This is not a case where s 40 has any application.
Section 38(5) provides that the Court shall not grant leave under subs (4) unless it considers that -
"(a)having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more parties to the arbitration agreement; and
(b)there is ¾
(i)a manifest error of law on the face of the award; or
(ii)strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law."
The circumstances in which the Court may grant leave pursuant to s 38(5) have been the subject of considerable judicial comment over a number of years. The history of the current leave provision was traced and discussed by Steytler J in UDR Equipment Pty Ltd v Afkos Industries Pty Ltd [2000] WASC 57; (2000) 22 WAR 221 and I need not repeat it here. His Honour found guidance in what the New South Wales Court of Appeal had to say on the equivalent provision of that State's Commercial Arbitration Act in Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203. In essence, the so‑called Nema guidelines were…

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: [2002] WASC 250
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Hassell & Anor v Silent Vector Pty Ltd t/a Sizer Homes involved an application for leave to appeal an arbitrator's award. The applicants, Ian Robert Hassell and Christine Anne Hassell, sought damages and specific performance for defects in their home, while the respondent, Silent Vector Pty Ltd, argued that the defects were not notified within the required timeframe and that the contractual remedies precluded common law damages. The applicants contended that the arbitrator erred in not considering their common law right to damages for the defects that emerged after the defects liability period.

The court had to decide whether the arbitrator's failure to consider the applicants' common law right to damages constituted an error of law and whether the error could substantially affect the rights of the parties or add to the certainty of commercial law. The court found that the arbitrator had indeed erred in law by not considering the applicants' entitlement to common law damages, which are independent of the contractual making good defects clause. The court held that the remedies under the making good defects clause are in addition to, not in substitution for, the common law rights. The error of law was considered manifest on the face of the award and likely to add substantially to the certainty of commercial law.

Consequently, the court granted leave to appeal on the ground that the arbitrator had failed to consider the applicants' common law right to damages. The applicants were permitted to amend their notice of appeal to include the issue of common law damages for the defects that became apparent after the defects liability period.

Orders