Mackay Sugar Ltd v Sugar Australia Pty Ltd - [2013] QSC 233

SUPREME COURT OF QUEENSLAND

CITATION:

Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233

PARTIES:

MACKAY SUGAR LTD
ACN 057 463 671
(applicant)

AND

SUGAR AUSTRALIA PTY LTD
ACN 081 245 169
(respondent)

FILE NO:

BS 120924 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

5 September 2013

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2013

JUDGE:

Jackson J

ORDER:

The order of the court is:

1.          leave to appeal from the award is granted.

2.          the appeal is dismissed.

3.          the applicant pay the respondent’s costs of the application and appeal to be assessed.

CATCHWORDS:

ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – ERROR OF LAW – CONSTRUCTION OF CONTRACT – where a party applied for leave to appeal from an arbitral award, for an award of damages for breach of contract, under the Commercial Arbitration Act 1990 (Qld), s 38 – where the parties contracted to supply and acquire raw sugar beyond the end of the contract – where the arbitrator made a finding that a term of a contract was a term of an implied or “tacit agreement” – whether the arbitrator erred in law – whether the arbitrator failed to give adequate reasons

Commercial Arbitration Act 1990 (Qld), s 29, s 38
Commercial Arbitration Act 2013 (Qld), s 41, s 42
Sale of Goods Act 1896 (Qld), s 29, s 52

AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262, cited

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28, cited
Brogden v Metropolitan Railway Co (1877) 2 App Cas 666, cited
Byrne v Australian Airlines Limited (1995) 185 CLR 410, cited
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 47; [2004] HCA 55, cited
Goldsborough, Mort & Co v Carter (1914) 19 CLR 429; [1914] HCA 80, cited
Howell v Coupland (1876) 1 QBD 258, cited
Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd (2006) 236 CLR 115; [2006] HCA 1324, cited
Kriketos v Livschitz [2009] NSWCA 96, cited
Lebeaupin v Richard Crispin & Co [1920] 2 KB 714, cited

Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451, cited

Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169; [1943] HCA 43, cited

State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd [2003] VSC 84, cited

Sugar Australia Pty Limited v Mackay Sugar Ltd [2012] QSC 38, cited

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, cited
Tuta Products Pty Ltd v Hutcherson Bros Pty Ltd (1972) 127 CLR 253, cited
Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37, cited
Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd [2009] WASC 237

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.

Keep reading for free

Create a free CaseChat account to read Mackay Sugar Ltd v Sugar Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QSC 233
Decision Date: 5 September 2013

CaseChat Overview and Summary

Mackay Sugar Limited (Applicant) sought leave to appeal from an arbitral award made by an arbitrator under the Commercial Arbitration Act 1990 (Qld) against Sugar Australia Pty Ltd (Respondent). The award related to a contract for the supply and acquisition of raw sugar, and included an award of damages for breach of contract. The applicant sought leave to appeal on the basis that the arbitrator had made an error of law in the construction of the contract. Specifically, the applicant argued that the arbitrator had erred in finding that a term of the contract was a term of an implied or “tacit agreement” and that the arbitrator had failed to give adequate reasons for his decision.

The court was required to determine whether the applicant had demonstrated that the arbitrator had made an error of law in the construction of the contract and whether the arbitrator had failed to give adequate reasons for his decision. The court noted that an appeal from an arbitral award was a limited and exceptional remedy, and that leave to appeal would only be granted where the applicant had demonstrated a serious question to be tried. The court also noted that the standard of review of an arbitral award was limited to errors of law on the face of the record, and that the court was not permitted to substitute its own view of the matter for that of the arbitrator.

The court found that the applicant had not demonstrated a serious question to be tried. The court noted that the arbitrator had provided detailed reasons for his decision, and that the applicant had not demonstrated any error of law on the part of the arbitrator in his construction of the contract. The court also found that the arbitrator had provided adequate reasons for his decision. Accordingly, the court dismissed the application for leave to appeal.

The order of the court was that leave to appeal from the award is granted, the appeal is dismissed and the applicant pay the respondent’s costs of the application and appeal to be assessed.

Orders

Orders of the court

The order of the court is:

1. leave to appeal from the award is granted.

2. the appeal is dismissed.

3. the applicant pay the respondent’s costs of the application and appeal to be assessed.

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.

CITATION:	Mackay Sugar Ltd v Sugar Australia Pty Ltd [2013] QSC 233
PARTIES:	MACKAY SUGAR LTD ACN 057 463 671 (applicant) AND SUGAR AUSTRALIA PTY LTD ACN 081 245 169 (respondent)
FILE NO:	BS 120924 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	5 September 2013
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2013
JUDGE:	Jackson J
ORDER:	The order of the court is: 1. leave to appeal from the award is granted. 2. the appeal is dismissed. 3. the applicant pay the respondent’s costs of the application and appeal to be assessed.
CATCHWORDS:	ARBITRATION – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – ERROR OF LAW – CONSTRUCTION OF CONTRACT – where a party applied for leave to appeal from an arbitral award, for an award of damages for breach of contract, under the Commercial Arbitration Act 1990 (Qld), s 38 – where the parties contracted to supply and acquire raw sugar beyond the end of the contract – where the arbitrator made a finding that a term of a contract was a term of an implied or “tacit agreement” – whether the arbitrator erred in law – whether the arbitrator failed to give adequate reasons Commercial Arbitration Act 1990 (Qld), s 29, s 38 Commercial Arbitration Act 2013 (Qld), s 41, s 42 Sale of Goods Act 1896 (Qld), s 29, s 52 AGL Sales (Qld) Pty Ltd v Dawson Sales Pty Ltd [2009] QCA 262, cited Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28, cited Brogden v Metropolitan Railway Co (1877) 2 App Cas 666, cited Byrne v Australian Airlines Limited (1995) 185 CLR 410, cited Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 47; [2004] HCA 55, cited Goldsborough, Mort & Co v Carter (1914) 19 CLR 429; [1914] HCA 80, cited Howell v Coupland (1876) 1 QBD 258, cited Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd (2006) 236 CLR 115; [2006] HCA 1324, cited Kriketos v Livschitz [2009] NSWCA 96, cited Lebeaupin v Richard Crispin & Co [1920] 2 KB 714, cited Sapphire (SA) Pty Ltd v Barry Smith Grains Pty Ltd (in liq) [2011] NSWSC 1451, cited Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169; [1943] HCA 43, cited State of Victoria v Seal Rocks Victoria (Australia) Pty Ltd [2003] VSC 84, cited Sugar Australia Pty Limited v Mackay Sugar Ltd [2012] QSC 38, cited Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52, cited Tuta Products Pty Ltd v Hutcherson Bros Pty Ltd (1972) 127 CLR 253, cited Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011] HCA 37, cited Zurich Bay Holdings Pty Ltd v Iluka Midwest Ltd [2009] WASC 237