| 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…
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- Case
- [2018] VSC 753
- Decision Date
CaseChat Overview and Summary
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.
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