Ku-ring-gai Council v Ichor Constructions Pty Ltd - [2019] NSWCA 2

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ku-ring-gai Council v Ichor Constructions Pty Ltd [2019] NSWCA 2
Hearing dates: 13 September 2018
Date of orders: 05 February 2019
Decision date: 05 February 2019
Before: Bathurst CJ at [1]; Beazley P at [87] Ward CJ in Eq at [88]
Decision:
(1) Dismiss the application for leave to appeal as incompetent.
(2) Order the applicant to pay the respondent’s costs of the application, including the costs of the objection to competency.
Catchwords:
COMMERCIAL ARBITRATION – Role of court – Commercial Arbitration Act 2010 (NSW) – judge of the Supreme Court dismissed summons seeking declarations that mandate of arbitrator had not been terminated – whether summons sought an “interim measure” under s 17J or was a request for a decision under s 14(2)
COMMERCIAL ARBITRATION – Role of court – Commercial Arbitration Act 2010 (NSW) – applicant sought to appeal from decision of judge of the Supreme Court made under s 14(2) – whether appeal to the Court of Appeal precluded by s 14(3)
Legislation Cited: Commercial Arbitration Act 2010 (NSW)
Housing Act 1958 (Vic)
International Arbitration Act 1974 (Cth)
Supreme Court Act 1970 (NSW)
Cases Cited: Achilleos v Housing Commission [1960] VR 164
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334
Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (2015) 246 FCR 479; [2015] FCA 1028
Swift-Fortune Ltd v Magnifica Marine SA [2006] SGCA 42
Texts Cited: UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (2012)
Category: Principal judgment
Parties: Ku-ring-gai Council (applicant)
Ichor Constructions Pty Ltd (respondent)
Representation:
Counsel:
C Birch SC with B Debuse (applicant)
S Robertson with L Corbett (respondent)
Solicitors:
HWL Ebsworth Lawyers (applicant)
BCP Lawyers & Consultants (respondent)

File Number(s): 2018/160051
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2018] NSWSC 610

Date of Decision:

8 May 2018

Before:

McDougall J

File Number(s):

2018/110112

HEADNOTE

[This headnote is not to be read as part of the judgment]

Ku-ring-gai Council and Ichor Constructions Pty Ltd were parties to a construction contract. Disputes arose under the contract and were referred to an arbitrator pursuant to an arbitration agreement. On the final day of the arbitration, the arbitrator asked the parties, in an “off the record” discussion, whether they would consent to him putting forward a proposal for settlement. The parties agreed and a handwritten document was prepared stating the consent of each party to this course of action.

After an adjournment, the arbitrator and the parties met in a “breakout room” different from the room where the hearing was being conducted for the arbitrator to put his proposal to the parties. The proposal was quickly rejected by both parties. The arbitration then resumed, with each of counsel for the Council and Ichor Constructions making closing submissions to the arbitrator. There was no reference by the arbitrator or either party to…

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: [2019] NSWCA 2
Decision Date: 05 February 2019

CaseChat Overview and Summary

The dispute in *Ku-ring-gai Council v Ichor Constructions Pty Ltd* concerned the role of the Supreme Court in relation to an arbitration under the *Commercial Arbitration Act 2010* (NSW). Ku-ring-gai Council (the applicant) had sought declarations from the Supreme Court that the mandate of an arbitrator had not been terminated. The primary judge dismissed this summons. The Council then sought to appeal this decision to the Court of Appeal.

The Court of Appeal was required to determine two principal legal issues. First, whether the summons seeking declarations from the Supreme Court constituted a request for an "interim measure" under section 17J of the Act, or a request for a decision under section 14(2). Second, if the primary judge's decision was made under section 14(2), whether an appeal to the Court of Appeal was precluded by section 14(3) of the Act.

The Court of Appeal held that the summons did not seek an interim measure under section 17J, but rather a determination of the arbitrator's mandate, which fell under the ambit of section 14(2). Crucially, the Court found that section 14(3) of the Act expressly precludes appeals from decisions made by a court under section 14(2). Therefore, the application for leave to appeal was incompetent.

Consequently, the Court of Appeal dismissed the application for leave to appeal as incompetent and ordered the applicant to pay the respondent’s costs of the application, including the costs of the objection to competency.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal as incompetent.

(2) Order the applicant to pay the respondent’s costs of the application, including the costs of the objection to competency.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Ku-ring-gai Council v Ichor Constructions Pty Ltd [2019] NSWCA 2
Hearing dates:	13 September 2018
Date of orders:	05 February 2019
Decision date:	05 February 2019
Before:	Bathurst CJ at [1]; Beazley P at [87] Ward CJ in Eq at [88]
Decision:	(1) Dismiss the application for leave to appeal as incompetent. (2) Order the applicant to pay the respondent’s costs of the application, including the costs of the objection to competency.
Catchwords:	COMMERCIAL ARBITRATION – Role of court – Commercial Arbitration Act 2010 (NSW) – judge of the Supreme Court dismissed summons seeking declarations that mandate of arbitrator had not been terminated – whether summons sought an “interim measure” under s 17J or was a request for a decision under s 14(2) COMMERCIAL ARBITRATION – Role of court – Commercial Arbitration Act 2010 (NSW) – applicant sought to appeal from decision of judge of the Supreme Court made under s 14(2) – whether appeal to the Court of Appeal precluded by s 14(3)
Legislation Cited:	Commercial Arbitration Act 2010 (NSW) Housing Act 1958 (Vic) International Arbitration Act 1974 (Cth) Supreme Court Act 1970 (NSW)
Cases Cited:	Achilleos v Housing Commission [1960] VR 164 Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334 Sino Dragon Trading Ltd v Noble Resources International Pte Ltd (2015) 246 FCR 479; [2015] FCA 1028 Swift-Fortune Ltd v Magnifica Marine SA [2006] SGCA 42
Texts Cited:	UNCITRAL, 2012 Digest of Case Law on the Model Law on International Commercial Arbitration (2012)
Category:	Principal judgment
Parties:	Ku-ring-gai Council (applicant) Ichor Constructions Pty Ltd (respondent)
Representation:	Counsel: C Birch SC with B Debuse (applicant) S Robertson with L Corbett (respondent) Solicitors: HWL Ebsworth Lawyers (applicant) BCP Lawyers & Consultants (respondent)
File Number(s):	2018/160051
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 610 Date of Decision: 8 May 2018 Before: McDougall J File Number(s): 2018/110112