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Lamac Developments Pty Ltd v Devaugh Pty Ltd

Lamac Developments Pty Ltd v Devaugh Pty Ltd

Case [2001] WASC 298 2 November 2001

Arbitration Award

Interest on Overdue Payments

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LAMAC DEVELOPMENTS PTY LTD -v- DEVAUGH PTY LTD [2001] WASC 298

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 298
Case No:	ARB:18/2000	Heard:	26 & 27 JULY 2001
Coram:	ROBERTS-SMITH J	Delivered:	2/11/01
No of pages:	38	Judgment Part:	1 of 1
Result:	Application dismissed Leave to appeal refused Application for leave to crossappeal dismissed Leave to crossappeal refused
Category:	B
PDF Version

Parties:	LAMAC DEVELOPMENTS PTY LTD (ACN 009 337 213) DEVAUGH PTY LTD (ACN 008 792 265)
Catchwords:	Arbitration Award Leave to appeal Interest at penalty rate on overdue provisional payments to subcontractor Finding that claim excessive Order that excess be repaid to main contractor Whether interest repayable Whether interest attributable to overpaid part of claim itself an overpayment Whether interest payable on whole amount repayable, including interest Arbitration Award Leave to appeal Costs award Whether successful party to be identified by final flow of money Other factors
Legislation:	Commercial Arbitration Act 1985, s 38(5)
Case References:	Crewford Pty Ltd v Transit Australia Pty Ltd, unreported; SCt of Qld; 5600/98 Badge Constructions Pty Ltd v Penbury Coast Pty Ltd [1999] SASC 6 Carpaolo Nominees Pty Ltd v Marrosan Nominees Pty Ltd (1997) 112 NTR 1 Codelfa Constructions Pty Ltd v State Rail Authority of New South Wales (1981-1982) 149 CLR 337 Commonwealth v Rian Financial Services and Developments Pty Ltd (1991) 105 FLR 239 De Francesch Builders Pty Ltd v Riley [2000] WASC 301 Devaugh Pty Ltd v Lamac Developments Pty Ltd [1999] WASCA 280 Keywest Construction Group Pty Ltd v Footscray Holdings Pty Ltd, unreported; SCt of WA (Anderson J); Library No 930078; 23 February 1993 Lamac Developments Pty Ltd v Devaugh Pty Ltd [1999] WASC 76 Miles v Palm Bridge Pty Ltd [2001] WASC 42 Natoli v Walker, unreported; FCt SCt of NSW; No 40351 of 1993; 26 May 1994 Oshlack v Richmond River Council (1998) 193 CLR 72 Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724 Promenade Investments Pty Ltd v New South Wales (1992) 22 NSWLR 203 Thiess Contractors Pty Ltd v Water Corporation WA, unreported; SCt of WA (Parker J); Library No 970561; 28 October 1997 UDR Equipment Pty Ltd v Afkos Industries Pty Ltd (2000) 22 WAR 221 BMD Constructions Pty Ltd v Golding Contractors Pty Ltd [2000] QSC 057 Exxon Coal Australia Ltd v Chadtech Pty Ltd [1999] NSWSC 613 Garner v Rohanna Pty Ltd [1999] WASCA 178 Godden v Alford [1960] WAR 235 Kleerstyle Homes v Dixon, unreported; SCt of Qld; 8037/97; 16 September 1997 Lamac Developments Pty Ltd v Devaugh Pty Ltd [1999] WASCA 280 LNC Harper Davidson Pty Ltd v Keywest Building Co Pty Ltd, unreported; SCt of WA (Kennedy J); Library No 7192; 13 July 1988 Masawa Australasia Pty Ltd v J Corp [2000] WASC 5 Minson Nacap Pty Ltd v AquatecMaxcon Pty Ltd [2000] VSC 402 Re CafGrains [1994] 2 Qd R 252 Re FA Pidgeon & Sons Pty Ltd (1992) 2 Qd R 275 Re Tiki Village International…

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 Lamac Developments Pty Ltd v Devaugh Pty Ltd

Details

AGLC: Lamac Developments Pty Ltd v Devaugh Pty Ltd [2001] WASC 298
Case: [2001] WASC 298
Decision Date

CaseChat Overview and Summary

The matter was an application for leave to appeal against two arbitral awards in a building dispute between Lamac Developments Pty Ltd and Devaugh Pty Ltd. The application was brought under s 38 of the Commercial Arbitration Act 1985 (WA). The applicant sought leave to appeal the second interim award dated 16 November 2000 and the final award dated 12 January 2001. The respondent sought leave to cross-appeal from the second interim award. The court was required to determine whether there was a manifest error of law on the face of the award, or strong evidence that the arbitrator made an error of law and that the determination of the question may add substantially to the certainty of commercial law. The court found that the applicant's appeal should be dismissed, and leave to appeal refused. The court found that the respondent's cross-appeal should also be dismissed, and leave to cross-appeal refused. The applicant's argument was that the arbitrator had erred in law in holding that Lamac's claim was in error because Lamac was not entitled to all of the money claimed so Lamac was in fact in default. The court found that the arbitrator's reasons could be read as saying simply that Lamac was at fault in claiming the amount it did because it was not in fact entitled to that amount. The court found that the arbitrator's conclusion that Lamac was not kept out of all of its money, because it was not owed all of it, was not an error of law at all. The court found that the arbitrator's conclusion that if Lamac was obliged to refund part of the principal, it must also be obliged to refund part of the interest was at the very least arguably correct. The court found that the respondent's cross-appeal was based on an allegation of an error of fact, not law, and therefore could not be the basis for leave to cross-appeal.

Orders