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Mango Boulevard Pty Ltd v Mio Art Pty Ltd

Mango Boulevard Pty Ltd v Mio Art Pty Ltd

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Case Copied 18 May 2017 71 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

Mango Boulevard P/L v Mio Art P/L & Ors [2017] QSC 87

PARTIES:

MANGO BOULEVARD PTY LTD

(applicant)

v

MIO ART PTY LTD

(respondent)

FILE NO/S:

BS9991/16 & BS1383/17

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

18 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2017

JUDGE:

Jackson J

ORDER:

The order of the court is that:

1. The application is dismissed.

CATCHWORDS:

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – THE AWARD – APPEAL OR JUDICIAL REVIEW – POWERS OF THE COURT – POWER TO SET ASIDE OR REMIT – where a reference to arbitration was made under a contract between the applicant and the respondent – where the arbitrator made two awards under the reference – where the applicant applied to set aside the awards under s 34 of the Commercial Arbitration Act 2013 (Qld) – where the respondent argued that if the application was granted the court should suspend the setting aside of proceedings to give the arbitrator an opportunity to resume the arbitral proceedings – whether the court has the power to remit the proceedings to the arbitrator after setting aside the award under the Commercial Arbitration Act 2013 (Qld)

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – WANT OF JURISDICTION AND EXCESS OF AUTHORITY – where a reference to arbitration was made under a contract between the applicant and the respondent – where the arbitrator made two awards under the reference – where the applicant applied to set aside the awards under s 34 of the Commercial Arbitration Act 2013 (Qld) – where the reference asked the arbitrator to apply the valuation method set out in the contract between the parties – where the contract required a market valuation to be performed and required the valuer to assume that the project would return a profit on cost of 25% - whether the arbitrator went outside the agreed contractual methodology in valuing the property

ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – MISCONDUCT – DENIAL OF NATURAL JUSTICE - where a reference to arbitration was made under a contract between the applicant and the respondent – where the arbitrator made two awards under the reference – where the applicant applied to set aside the awards under s 34 of the Commercial Arbitration Act 2013 (Qld) – where the applicant argued that the arbitrator rejected witness evidence and made findings on the basis of points which were not raised with the witness or the applicant’s counsel – where the applicant argued that the arbitrator acted in a procedurally unfair way by making a finding of costs that was outside the range of the values advanced by the applicant and the respondent – whether the award should be set aside on the basis that there had been a denial of natural…

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: [2017] QSC 87
Decision Date: 18 May 2017

CaseChat Overview and Summary

Mango Boulevard Pty Ltd applied to the Supreme Court of Queensland to set aside two arbitral awards made by an arbitrator to whom a dispute was referred under a contract between the parties. The respondent, Mio Art Pty Ltd, argued that if the application was granted, the court should suspend the setting aside of the awards to give the arbitrator an opportunity to resume the arbitral proceedings. The primary issue was whether the court has the power to remit the proceedings to the arbitrator after setting aside the award under the Commercial Arbitration Act 2013 (Qld). The court also considered whether the arbitrator exceeded their authority and whether the awards should be set aside on the basis of procedural unfairness.

The court held that the arbitrator did not exceed their authority by applying a valuation method that differed from the one set out in the contract. The court found that the contract required a market valuation, but it did not specify a particular method. The court held that the arbitrator was entitled to choose a valuation method that was appropriate in the circumstances, and the method they chose was reasonable. The court also held that the arbitrator did not act in a procedurally unfair way by rejecting witness evidence and making findings on the basis of points that were not raised with the witness or the applicant's counsel. The court found that the arbitrator was entitled to consider all the evidence before them and make findings based on that evidence. The court held that the applicant had not established that the arbitrator acted in a way that was procedurally unfair.

The court dismissed the application to set aside the awards. The court held that it did not have the power to remit the proceedings to the arbitrator after setting aside the award under the Commercial Arbitration Act 2013 (Qld). The court held that the power to remit the proceedings to the arbitrator was a power that was available to the parties under the arbitration agreement, and it was not a power that was available to the court under the Act. The court held that the application to set aside the awards should be dismissed.

Orders

Orders of the court

The order of the court is that:

1. The application is dismissed.

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:	Mango Boulevard P/L v Mio Art P/L & Ors [2017] QSC 87
PARTIES:	MANGO BOULEVARD PTY LTD (applicant) v MIO ART PTY LTD (respondent)
FILE NO/S:	BS9991/16 & BS1383/17
DIVISION:	Trial Division
PROCEEDING:	Originating Application
DELIVERED ON:	18 May 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2017
JUDGE:	Jackson J
ORDER:	The order of the court is that: 1. The application is dismissed.
CATCHWORDS:	ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – THE AWARD – APPEAL OR JUDICIAL REVIEW – POWERS OF THE COURT – POWER TO SET ASIDE OR REMIT – where a reference to arbitration was made under a contract between the applicant and the respondent – where the arbitrator made two awards under the reference – where the applicant applied to set aside the awards under s 34 of the Commercial Arbitration Act 2013 (Qld) – where the respondent argued that if the application was granted the court should suspend the setting aside of proceedings to give the arbitrator an opportunity to resume the arbitral proceedings – whether the court has the power to remit the proceedings to the arbitrator after setting aside the award under the Commercial Arbitration Act 2013 (Qld) ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – WANT OF JURISDICTION AND EXCESS OF AUTHORITY – where a reference to arbitration was made under a contract between the applicant and the respondent – where the arbitrator made two awards under the reference – where the applicant applied to set aside the awards under s 34 of the Commercial Arbitration Act 2013 (Qld) – where the reference asked the arbitrator to apply the valuation method set out in the contract between the parties – where the contract required a market valuation to be performed and required the valuer to assume that the project would return a profit on cost of 25% - whether the arbitrator went outside the agreed contractual methodology in valuing the property ARBITRATION – CONDUCT OF THE ARBITRATION PROCEEDINGS – THE AWARD – APPEAL OR JUDICIAL REVIEW – GROUNDS FOR REMITTING OR SETTING ASIDE – MISCONDUCT – DENIAL OF NATURAL JUSTICE - where a reference to arbitration was made under a contract between the applicant and the respondent – where the arbitrator made two awards under the reference – where the applicant applied to set aside the awards under s 34 of the Commercial Arbitration Act 2013 (Qld) – where the applicant argued that the arbitrator rejected witness evidence and made findings on the basis of points which were not raised with the witness or the applicant’s counsel – where the applicant argued that the arbitrator acted in a procedurally unfair way by making a finding of costs that was outside the range of the values advanced by the applicant and the respondent – whether the award should be set aside on the basis that there had been a denial of natural…