HENDERSON and AINTREE HOLDINGS PTY LTD - [2021] WASAT 113

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   HENDERSON and AINTREE HOLDINGS PTY LTD [2021] WASAT 113
MEMBER:   MS N OWEN-CONWAY, MEMBER
HEARD:   8 JUNE 2021
DELIVERED          :   2 AUGUST 2021
PUBLISHED           :   27 AUGUST 2021
FILE NO/S:   CC 688 of 2021
BETWEEN:   RAYMOND HENDERSON
First Applicant
MIRELLE TJONG-HENDERSON
Second Applicant
AND
AINTREE HOLDINGS PTY LTD
Respondent

Catchwords:

Arbitration agreement - Order to refer parties to arbitration - Whether arbitration clause is an arbitration agreement - Order to be made

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 5(2), s 11(1)(d), s 36, s 37, s 38
Commercial Arbitration Act 2011 (Vic), s 8
Commercial Arbitration Act 2012 (WA), s 1, s 1C, s 5, s 7, s 8, s 8(1), s 8(2)
Home Building Contracts Act 1991 (WA), s 3, s 3(b)(ii), s 17
Home Building Contracts Regulations 1992 (WA), reg 2A
State Administrative Tribunal Act 2004 (WA), s 9

Result:

Parties ordered to arbitration
Proceeding stayed for a specific period of time

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	Mr W Vogt

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Vogt Graham Lawyers

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

Australian Maritime Systems Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2016] WASC 52
CPB Contractors Pty Limited v Celsus Pty Limited [2017] FCA 1620 (2017) 353 ALR 84
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [2020] WASCA 77
Hi Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 86 FCR 374
Nu-Fortune Gold Ltd v Roxbury Trading Pty Ltd [No 3] [2019] WASC 469
Pipeline Services WA Pty Ltd v Atco Gas Australia Pty Ltd [2014] WASC 10
Rinehart v Hancock Prospecting Pty Ltd & Ors [2019] HCA 13
Shakur and Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT 12
Subway Systems Australia Pty Ltd v Ireland [2014] VSCA 142

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The preliminary issue before the Tribunal concerns whether the proceeding referred by the Building Commissioner of Western Australia (Commissioner) to the Tribunal, pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), should be dismissed or stayed.

Background - the dispute and the nature of the dispute

The applicants lodged a complaint against the respondent with the Commissioner concerning the respondent's construction of a pool at the applicants' home situated at 88 Stoneham Road, Attadale in the State of Western Australia. That complaint was lodged on the 4 March 2021 in respect of work which was completed by the respondent and which the respondent notified the City of Melville (City) as being complete by filing a notice of completion dated the 26 August 2016 in the City's registry.
The respondent constructed a residential dwelling and the pool for the applicants, pursuant to a contract between the parties which was entered into on the 7…

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: [2021] WASAT 113
Decision Date: 27 AUGUST 2021

CaseChat Overview and Summary

Henderson and Aintree Holdings Pty Ltd was a proceeding before the Australian Building and Construction Commission. The dispute centred on the interpretation and enforcement of an arbitration clause within a contract between the parties. The key legal issue the court needed to decide was whether the clause in question constituted an arbitration agreement under the Commonwealth Arbitration Act, and if so, whether the court was obliged to refer the parties to arbitration. The court was required to examine the language of the clause, its form, and whether it complied with the statutory requirements for an arbitration agreement as defined in the Act.

The court considered the statutory definition of an arbitration agreement under the Arbitration Act, which includes an agreement to submit to arbitration all or certain disputes arising from a defined legal relationship. The court also noted that the Act mandates that a court must refer parties to arbitration if an arbitration agreement exists, unless the agreement is null, void, or incapable of being performed. The court examined clause 16 of the contract to determine if it met the criteria for an arbitration agreement, including whether it was in writing and whether the parties had agreed to submit to arbitration all or certain disputes arising from their contractual relationship.

In its decision, the court found that clause 16 did indeed constitute an arbitration agreement as defined by the Arbitration Act. The court held that since the clause met the statutory requirements, it was bound to refer the parties to arbitration in accordance with section 8 of the Act. The court concluded that the respondent's request to refer the dispute to arbitration was valid and that the proceeding should be stayed until the matter was resolved through arbitration.

The court ordered that the proceeding be stayed and that the parties were to refer the dispute to arbitration in accordance with the terms of clause 16 of the contract and section 8 of the Arbitration Act. The court also noted that the respondent had complied with the procedural requirements by requesting the referral to arbitration when called upon to make its first statement on the substance of the dispute.

Orders

Orders of the court

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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

Section 7 defines and arbitration agreement relevantly, as follows:(1)An arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.(2)An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.(3)The arbitration agreement must be in writing[.](Tribunal emphasis added) Most significantly in this proceeding s 8 of the CA Act provides:(1)A court before which an action is brought in a matter which is the subject of an arbitration agreement must, if a party so requests not later than when submitting the party's first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.(2)Where an action referred to in subsection (1) has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court. In its Statement of Issues, Facts and Contentions (SIFC) the respondent asserts that the Tribunal is bound to refer the proceeding to arbitration and in the interim the proceeding should be stayed (see para 4.2 of respondent's SIFC). The Tribunal notes that the respondent had initially sought an order that the proceeding be dismissed. Neither party has moved to commence arbitral proceedings pursuant to clause 16 of the contract. Either party may move to commence the arbitral proceedings. The respondent's position is that the applicants have issued the notice of dispute by the preliminary notice of complaint and are obliged by clause 16 to have the dispute resolved by arbitration. The respondent further contends that the applicants should move to commence the arbitral process called for by clause 16 to resolve and determine the dispute. There are no arbitral proceedings on foot concerning the dispute, the substance of this proceeding. The respondent asserts that clause 16 of the contract is an arbitration agreement for the purposes of s 7 of the CA Act and the applicants are bound for their dispute to be determined at arbitration. Having instead commenced proceedings by way of a complaint to the Commissioner, the respondent asserts it has complied with s 8(1) of the CA Act and clause 16 and requested that the dispute between the parties be referred to arbitration by the Commissioner or the Tribunal (once referred). The respondent asserts that it made the request for referral to arbitration, at the latest, by the time when it was called upon to make the first statement on the substance of the dispute by the Commissioner or the Tribunal. It has refused to enter a statement on the substance of the dispute in order to preserve its rights pursuant to s 8(1) of the CA Act. The respondent asserts that as the proceeding is before the Tribunal, as a 'court for the purposes of s 8(1) of the CA Act', the Tribunal is obliged to refer the dispute to arbitration by reason of clause 16 of the contract and the provisions of s 8 of the CA Act.