Arbitration - Application for leave to appeal sought for a second time following remission to the Arbitrator by the Full Court - Costs of arbitration - Arbitrator's discretion concerning award of costs - Statutory requirements necessary for leave to appeal not made out

Legislation:

Commercial Arbitration Act 1985, s 38(4)(b), s 38(5)(a), s 38(5)(b)

Result:

Leave to appeal refused

Category: B

Representation:

Counsel:

Applicants (Respondents) : Mr P G McGowan
Respondent (Claimant) : Mr C B Edmonds SC & Mr J D Finlay

Solicitors:

Applicants (Respondents) : Phillips Fox
Respondent (Claimant) : J D Finlay & Co

Case(s) referred to in judgment(s):

Aintree Holdings Pty Ltd v Corderoy (1996) 16 WAR 416
Badge Constructions Pty Ltd v Penbury Coast Pty Ltd [1999] SASC 6
Lamac Developments Pty Ltd v Devaugh Pty Ltd [2002] WASCA 245
Miles v Palm Bridge Pty Ltd [2001] WASC 42
Palm Bridge v Miles & Anor [2001] WASCA 334
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203

Case(s) also cited:

Angelatos v Alternative Constructions Pty Ltd, unreported; FCT of SCt Vic; 30 November 1992
Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
BMD Constructions Pty Ltd v Golding Contractors Pty Ltd [2000] QSC 057
Carpaolo Nominees Pty Ltd v Marrosan Nominees Pty Ltd (1997) 112 NTR 1
Commonwealth v Rian Financial Services & Developments Pty Ltd (1991) 105 FLR 239
Cretazzo v Lombardi (1975) 13 SASR 4
Crewford Pty Ltd v Transit Authority Pty Ltd, unreported; SCt Qld; 23 March 1999
Cummings v Lewis (1993) 41 FCR 559
D Phillips Constructions (Vic) Pty Ltd v Mullavey & Adams [1980] VR 171
Exxon Coal Australia Ltd (formerly White Industries Ltd) v Chadtech Pty Ltd [1999] NSWSC 574
Hally v Dennis (1955) 95 CLR 661
Kleerstyle Homes v Dickson, unreported; SCt Qld; 16 September 1997
Leighton Contractors Ltd v Western Australian Government Railways Commission (1966) 115 CLR 575
LNC Harper Davidson Pty Ltd v Keywest Building Co Pty Ltd, unreported; SCt WA (Kennedy J); Library No 7192; 13 July 1988
Lovell v Lovell (1950) 81 CLR 513
Natoli v Walker, unreported; SCt NSW; 26 May 1994
Oshlack v Richmond River Council (1998) 193 CLR 72
Pioneer Shipping Ltd v BTP Tioxide Ltd (The Nema) [1982] AC 724
Re Caf-Grains [1994] 2 Qd R 252
Re FA Pidgeon & Son Pty Ltd [1992] 2 Qd R 275
Robinson v Australian Association of Social Workers Ltd [2000] SASC 239
Scherer v Counting Instruments Ltd [1986] 1 WLR 615
Tramountana Armadora SA v Atlantic Shipping Co SA [1978] 2 All ER 870
Tuta Products Ltd v Hutcherson Bros Pty Ltd (1972) 127 CLR 253
UDR Equipment…

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 Miles v Palm Bridge Pty Ltd

Details

AGLC: Miles v Palm Bridge Pty Ltd [2002] WASC 284
Case: [2002] WASC 284
Decision Date

CaseChat Overview and Summary

This case involves an application for leave to appeal under section 38(4)(b) of the Commercial Arbitration Act 1985. The applicants, Frederick Laurence Miles and Faye Lorraine Miles, seek leave to appeal a decision of the Arbitrator regarding costs in a dispute with Palm Bridge Pty Ltd over the construction of a residence. The legal issues the court was required to decide include 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, or may be likely to add, substantially to the certainty of commercial law. The court considered the history of the case, including previous decisions by a single Judge and the Full Court, and noted that the Arbitrator had varied the original costs order by only 10% despite being directed to reconsider the question of costs based on appropriate legal principles. The court found that the Arbitrator had not properly exercised his costs discretion and that the Full Court's directions were not adequately followed. However, the court determined that leave to appeal should be refused, as it was not in keeping with the philosophy of the Commercial Arbitration Act to countenance repeated appeals except in an obvious case. The court concluded that the circumstances did not warrant granting leave to appeal a second time.

Orders