Ingham Property Development Pty Limited v Impeccable Construction Pty Ltd

[2017] NSWSC 298

Supreme Court

New South Wales

Medium Neutral Citation:	Ingham Property Development Pty Limited v Impeccable Construction Pty Ltd [2017] NSWSC 298
Hearing dates:	27 March 2017
Decision date:	27 March 2017
Jurisdiction:	Equity - Commercial Arbitration List
Before:	Stevenson J
Decision:	Proceedings dismissed
Catchwords:	COMMERCIAL ARBITRATION – arbitrator dismissed claim – arbitrator ordered defendant to pay costs of the arbitration including arbitrator’s fees – whether necessary to bring these proceedings to compel defendant to pay those fees – whether any utility in these proceedings
Legislation Cited:	Commercial Arbitration Act 2010 (NSW)
Category:	Principal judgment
Parties:	Ingham Property Development Pty Limited (Plaintiff) Impeccable Construction Pty Ltd (Defendant)
Representation:	Counsel: M Bennett (Plaintiff)   Solicitors: Marsdens Law Group (Plaintiff) Galluzzo Lawyers (Defendant)
File Number(s):	SC 2017/49166

EX TEMPORE Judgment (REVISED)

1. The plaintiff as vendor and the defendant as purchaser were parties to a contract for sale of land which was exchanged on 11 December 2014. The sale settled on 4 June 2015. A dispute arose between the parties under a particular clause of the contract. The contract provided that such disputes be referred to arbitration.

2. That dispute was referred to Mr Timothy Griffiths, as arbitrator.

3. On 23 October 2015, Mr Griffiths issued an arbitration award to the following effect:

1. the claim by the defendant be dismissed;

2. the defendant pay the costs of the plaintiff of the arbitration (including the arbitrator's fees); and

3. subject to payment of the arbitrator's fees, the monies “held back on assessment” be released to the plaintiff.

4. The plaintiff has now paid the arbitrator's costs. They are thus now part of the plaintiff’s costs of the arbitration.

5. A dispute has arisen between the parties as to the quantification of the plaintiff's costs.

6. The plaintiff, by summons filed on 16 February 2017, has brought these proceedings seeking the following orders:

1. Pursuant to s 35 of the Commercial Arbitration Act 2010 (NSW), order that the Arbitration Award dated 23 October 2015 (“Arbitration Award”), made by Timothy Griffiths, be entered as a judgment in these proceedings.

2. Pursuant to the Arbitration Award referred to in (1), the Court makes the following orders:

1. The defendant to pay the plaintiff’s costs of and incidental to the arbitration conducted by Mr Griffiths, including arbitrator fees, pursuant to the Commercial Arbitration Act (“Arbitration”) either as agreed or assessed.

2. The defendant to pay the plaintiff’s costs of and incidental to the defendant of the cross-claim pleaded during the course of the Arbitration, as agreed or assessed.

3. Subject to payment of arbitrator fees by the defendant, Mr Griffiths release monies held back on settlement to the plaintiff.

3. Order that the defendant pay the plaintiff’s costs of these proceedings.

7. In my opinion, there was no need for the plaintiff to seek, or the Court to make, any of those orders. These proceedings thus lack any utility.

8. So far as concerns the arbitration award itself, s 35 of the Commercial Arbitration Act provides that the arbitration award is binding on the parties and may be enforced by dint of that section. There is no reason for the Court to make any further orders to give effect to Mr Griffith's decision.

9. So far as concerns the costs of the arbitration, s 33B(5) provides:

“Any costs of an arbitration (other than the fees or expenses of an arbitrator) that are directed to be paid by an award are, to the extent that they have not been taxed or settled by the arbitral tribunal, to be assessed in accordance with section 33C.”

10. Section 33C provides that such costs are to be assessed in accordance with the applicable legal costs legislation.

11. Evidently, the plaintiff apprehended that the parenthetical reference in s 33B(5) to "other than the fees or expenses of an arbitrator" had the effect that it was necessary for it to bring these proceedings.

12. I do not agree.

13. What that parenthetical reference makes clear is that the fees or expenses of the arbitrator cannot themselves be assessed in accordance with s 33B(5). But there is no question in these proceedings of the arbitrator's fees being assessed.

14. What has happened is that the plaintiff has itself paid the arbitrator's fees and now seeks to recover the amount of those fees, in addition to its own costs of the arbitration, as a disbursement. This is what the arbitrator ordered (see [3(b)] above).

15. The plaintiff can proceed to assessment under s 33C. There is no need for any order of the Court.

16. The plaintiff did not press for order 2(b) set out at [6] above.

17. As the plaintiff has paid the arbitrator’s fees, there is no need for order 2(c).

18. The proceedings must be dismissed.

19. As to costs, I was taken to correspondence passing between the solicitors for the parties prior to commencement of proceedings.

20. Having considered that correspondence, my opinion is that the appropriate order for costs is that there be no order as to costs.

21. The summons is dismissed with no order as to costs.

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Decision last updated: 27 March 2017