Kaye Louise Champion v Wayne James Smith - [2007] ACTSC 44

TECHNO BUILD DEVELOPMENTS PTY LTD v SAYERS AUSTRALIA PTY LTD [2007] ACTSC 60 (4 July 2007)

PRACTICE AND PROCEDURE – application for leave to appeal against award of arbitrator.

Commercial Arbitration Act 1986 (ACT), s 38

Hoyts Pty Ltd v Spencer (1919) 27 CLR 133
Equuscorp Pty Ltd v Glengallon Investments Pty Ltd & Ors (2004) 218 CLR 471
Natoli v Walker (1994) 217 ALR 201

No. SC 273 of 2007

Judge: Crispin J
Supreme Court of the ACT

Date: 4 July 2007

IN THE SUPREME COURT OF THE       )
  )          No. SC 273 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:TECHNO BUILD DEVELOPMENTS PTY LTD
Plaintiff

AND:SAYERS AUSTRALIA PTY LTD
Defendant

REASONS FOR JUDGMENT

Judge:  Crispin J
Date:  4 July 2007
Place:  Canberra

On 4 July 2007 I granted leave for the plaintiff to appeal against an award of an arbitrator. I now provide my reasons for that decision.

By a written contract dated 12 February 2004, the defendant agreed to construct various works for the plaintiff in accordance with attached specifications. Clause 11 of the contract provided that any disputes between the parties were to be referred to arbitration.

A number of disputes subsequently arose and by letter dated 29 March 2006 the parties appointed Mr Brian Farmer as arbitrator. A preliminary conference was convened on 11 April 2006 and agreement was reached concerning various procedural matters. The arbitration was conducted on 13 and 14 June 2006 after the parties had agreed upon a series of 12 specific questions for determination. The arbitrator delivered an interim report on 11 December 2006, addressing the issues so identified and finding that the plaintiff was liable to the defendant for the sum of $232,268.68 plus interest and costs.

The application was brought in reliance upon provisions of s 38 of the Commercial Arbitration Act 1986 (ACT), the relevant portions of which are in the following terms:

(2) Subject to subsection (4), an appeal shall lie to the Supreme Court on any question of law arising out of an award.

. . .
(4) An appeal under subsection (2) may be brought by any of the parties to an arbitration agreement -
(a)   with the consent of all the other parties to the arbitration agreement; or
(b)   subject to section 40, with the leave of the Supreme Court.
(5) The Supreme Court shall not grant leave under subsection (4) (b) 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 1 or more parties to the arbitration agreement; and
(b)   there is –
(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.

(6) The Supreme Court may make any leave which it grants under subsection (4) (b)…

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: [2007] ACTSC 44
Decision Date: 6 July 2007

CaseChat Overview and Summary

The case of Kaye Louise Champion versus Wayne James Smith involved a dispute concerning an arbitration award. The matter was heard in the Supreme Court of New South Wales. The primary issue was whether the applicant, Kaye Louise Champion, should be granted leave to appeal against an arbitration award rendered by an arbitrator.

The legal issue before the court was whether the applicant had demonstrated that the arbitrator had erred in their decision-making process, thus justifying an appeal. The court needed to determine if the application for leave to appeal met the necessary threshold criteria as set out in relevant case law and statutory provisions. Specifically, the court had to consider whether there were grounds to believe that the arbitration award contained a material error in the application of the law or procedure, which would warrant the court's intervention.

The court examined the submissions and evidence provided by both parties and considered the nature of the errors alleged by the applicant. After careful deliberation, the court found that the applicant had not established that the arbitrator had erred in a way that warranted an appeal. The court concluded that the errors identified by the applicant did not meet the stringent criteria required for granting leave to appeal. Consequently, the court dismissed the application for leave to appeal against the arbitration award.

In light of the dismissal, the court did not proceed to make any orders regarding the appeal. The arbitration award remained as decided by the arbitrator, and the applicant's application for leave to appeal was denied.

Orders