Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd - [2018] VSC 753

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

ARBITRATION LIST

S ECI 2018 02209

MITCHELL WATER AUSTRALIA PTY LTD (ACN 097 612 149)	Applicant
v
McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017)	Respondent

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JUDGE:	CROFT J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2018
DATE OF JUDGMENT:	14 December 2018
CASE MAY BE CITED AS:	Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 753

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ARBITRATION – Application for adjournment of application to enforce arbitral award pending resolution of applications in the court of the “arbitral seat” (Supreme Court of Queensland) – Commercial Arbitration Act 2011 (Vic), ss 35 and 36 – Commercial Arbitration Act 2013 (Qld), ss 16(9), (11) and 34.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr N Hopkins QC with Mr K Naish and Mr B Mason	HWL Ebsworth Lawyers
For the Respondent	Mr J J Gleeson QC with Mr A G Rollnik	Pinsent Masons

HIS HONOUR:

Introduction

The Applicant (“Mitchell Water”) applies pursuant to s 35 of the Commercial Arbitration Act 2011 (“the Act”) for the enforcement of the arbitral award titled “VO#300: Outstanding Matters” dated 29 October 2018 (“the Award”) made by Mr Paul Santamaria QC as arbitrator (“the Arbitrator”). The Respondent (“McConnell Dowell”) seeks an adjournment of this application pursuant to s 36(2) of the Act, and alternatively, pursuant to the Court’s inherent or general power to control its own proceedings, on the basis that it has issued an application to set aside the Award in the Supreme Court of Queensland.[1] Mitchell Water contends that, contrary to that contention, McConnell Dowell has done no such thing.
[1]See Application to Adjourn Decision on Enforcement of Award (15 November 2018), as amended with leave via emails on 3–4 December 2018.

Brief history of the arbitration

Mitchell Water and McConnell Dowell are parties to a subcontract dated 1 May 2012 (“the Subcontract”) containing the agreement of the parties to submit disputes to arbitration. Pursuant to the subcontract, McConnell Dowell initiated the arbitration on 15 December 2014.

The arbitration was conducted pursuant to the Commercial Arbitration Act 2013 (Qld) (“the Queensland Act”). The arbitral hearings took place before the Arbitrator in the County Court building in Melbourne between May and December 2016. Both parties were represented by solicitors and counsel, and both parties called lay and expert evidence. It is uncontroversial between the parties that the “arbitral seat” is Queensland and that the supervising court is the Supreme Court of Queensland; and that this position was not affected merely because the arbitration hearings took place in Melbourne.[2]
[2]See PT Garuda Indonesia v Birgen Air [2002] 1 SLR(R) 401 (Singapore CA) and the discussion of this and other authorities in Chan Leng Sun, Singapore Law on Arbitral Awards (Academic Publishing Singapore, 2011), 45–51; also David Joseph and David Foxton (Eds) Singapore International Arbitration: Law and Practice (2018, LexisNexis) at 365 [XI 4.4]; and see below, [11].

On 14 December…

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: [2018] VSC 753
Decision Date: 14 December 2018

CaseChat Overview and Summary

Mitchell Water Australia Pty Ltd sought to enforce an arbitral award against McConnell Dowell Constructors (Aust) Pty Ltd. The matter came before the Supreme Court of Victoria in an application to adjourn the enforcement process pending the resolution of related matters in the Supreme Court of Queensland. The dispute centred on whether the Victorian court should stay its enforcement proceedings in light of concurrent proceedings in Queensland, under the Commercial Arbitration Act 2011 (Vic) and the Commercial Arbitration Act 2013 (Qld). The legal issues required the court to determine the appropriate jurisdictional interplay between the two states’ arbitration acts, specifically whether the Victorian court had the authority to enforce the arbitral award while Queensland courts were also adjudicating related matters.

The court examined the statutory provisions concerning the enforcement of arbitral awards in both jurisdictions, particularly sections 35 and 36 of the Victorian act and sections 16(9), (11) and 34 of the Queensland act. It was necessary to discern whether the Queensland proceedings could be deemed to involve a "matter in issue" under the Victorian act, which would warrant a stay of enforcement in Victoria. The court found that the Queensland court's involvement in related applications did not necessarily equate to a "matter in issue" within the meaning of the Victorian act. Consequently, the Victorian court retained the jurisdiction to proceed with the enforcement of the arbitral award.

The court held that the enforcement of the arbitral award could proceed in Victoria, without being stayed pending the resolution of related matters in Queensland. It was noted that the enforcement of the award was a matter of right under the Victorian act, provided no other specific statutory conditions were unmet. The court concluded that the concurrent proceedings in Queensland did not compel a stay under the Victorian act, thereby allowing Mitchell Water Australia Pty Ltd to enforce the arbitral award against McConnell Dowell Constructors (Aust) Pty Ltd. The application for an adjournment was dismissed.

In summary, the court's decision allowed the enforcement of the arbitral award to proceed in Victoria, notwithstanding related applications in Queensland. The court made it clear that the enforcement of the award was not subject to a stay under the Victorian act due to the concurrent proceedings in Queensland. The orders made by the court included dismissing the application for an adjournment of the enforcement proceedings.

Orders