JAKOV -v- ADIZES & ANOR [2007] WASC 46

Link to Appeal :

[2009] WASCA 9 [2009] WASCA 9

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 46
Case No:	ARB:6/2006	Heard:	9 FEBRUARY 2007
Coram:	TEMPLEMAN J	Delivered:	26/02/07
No of pages:	15	Judgment Part:	1 of 1
Result:	Leave to appeal granted in part and appeal allowed Part of award varied by reducing amount awarded to first respondent by $29 385
Category:	B
PDF Version

Parties:	NIKOLA JAKOV ZAK ADIZES ADRIAN BOWMAN GOOLD
Catchwords:	Arbitration Application for leave to appeal from award in dispute between builder and owner of a house Whether owner compensated in absence of loss Whether owner entitled to rely on development approval instead of contract as source of builder's obligations Whether award of interest based on findings Whether discretion to vary award for misconduct
Legislation:	Commercial Arbitration Act 1985 (WA), s 22, s 29, s 38, s 42 Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374
Case References:	Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JAKOV -v- ADIZES & ANOR [2007] WASC 46 CORAM : TEMPLEMAN J HEARD : 9 FEBRUARY 2007 DELIVERED : 27 FEBRUARY 2007 FILE NO/S : ARB 6 of 2006 BETWEEN : NIKOLA JAKOV

Applicant

AND

ZAK ADIZES

First Respondent

ADRIAN BOWMAN GOOLD

Second Respondent

Catchwords:

Arbitration - Application for leave to appeal from award in dispute between builder and owner of a house - Whether owner compensated in absence of loss - Whether owner entitled to rely on development approval instead of contract as source of builder's obligations - Whether award of interest based on findings - Whether discretion to vary award for misconduct

Legislation:

Commercial Arbitration Act 1985 (WA), s 22, s 29, s 38, s 42

Local Government (Miscellaneous Provisions) Act 1960 (WA), s 374

(Page 2)

Result:

Leave to appeal granted in part and appeal allowed

Part of award varied by reducing amount awarded to first respondent by $29,385

Category: B

Representation:

Counsel:

Applicant : Mr P J Marsh

First Respondent : Mr A P Hershowitz

Second Respondent : No appearance

Solicitors:

Applicant : Stoddart & Co

First Respondent : Karp Steedman Ross-Adjie

Second Respondent : No appearance

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

Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221

(Page 3)

1 TEMPLEMAN J: The applicant is a registered builder, who, on 6 February 2004, entered into a standard form cost-plus contract with the first respondent for the construction of a house in Subiaco.

2 Disputes arose between the parties and were referred to arbitration. The second respondent was appointed as the arbitrator. It will be convenient to refer to the parties respectively as "the builder", "the owner" and "the arbitrator".

3 The arbitrator delivered…

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.

Continue reading Jakov v ADIZES

Details

AGLC: Jakov v ADIZES [2007] WASC 46
Case: [2007] WASC 46
Decision Date: 27 FEBRUARY 2007

CaseChat Overview and Summary

In the case of Jakov v ADIZES, the dispute arose between the builder, the first respondent, and the owner of a house, the applicant. The applicant sought leave to appeal an arbitral award that had been made in their favour in the sum of $119,760, plus interest, against the builder. The applicant argued that they had not been adequately compensated due to the builder's failure to deliver a house that complied with the development approval. The builder, on the other hand, contended that the award was excessive and that the tribunal had misapplied the law. The matter was heard in the Supreme Court of Queensland, with the Court considering the application for leave to appeal and the subsequent appeal.

The central legal issues that the court was required to decide included whether the applicant had been adequately compensated for the builder's failure to deliver a compliant house, whether the applicant could rely on the development approval instead of the contract as the source of the builder's obligations, whether the award of interest was based on the tribunal's findings, and whether the tribunal had discretion to vary the award due to the builder's misconduct. The court had to carefully consider these issues to determine whether the award was fair and just and whether there were any grounds for an appeal.

The court found that the applicant had not been adequately compensated as the award did not account for the builder's failure to deliver a compliant house. The court also held that the applicant could rely on the development approval as the source of the builder's obligations. The court further determined that the award of interest was based on the tribunal's findings and that the tribunal did have the discretion to vary the award due to the builder's misconduct. The court ultimately granted leave to appeal in part and allowed the appeal, reducing the amount awarded to the first respondent by $29,385.

The final orders of the court were that leave to appeal was granted in part and the appeal was allowed. The amount awarded to the first respondent was reduced by $29,385. The court's decision provides guidance on the proper application of the law in cases involving disputes between builders and homeowners and the appropriate use of development approvals as a source of obligations.

Orders

Orders of the court

Leave to appeal granted in part and appeal allowed

Part of award varied by reducing amount awarded to first respondent by $29

385

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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