Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd - [2011] QSC 174

SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2011] QSC 174

PARTIES:

NORTHBUILD CONSTRUCTION PTY LTD
ACN 011 063 764
(applicant)
v
DISCOVERY BEACH PROJECT PTY LTD
ACN 100 500 981
(respondent)

FILE NO/S:

785 of 2010

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

22 June 2011

DELIVERED AT:

Brisbane

HEARING DATE:

30 May 2011

JUDGE:

Applegarth J

ORDER:

Upon the giving of the undertakings in Exhibit 7, there be orders in the terms of Exhibit 2.

CATCHWORDS:

ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD – JUDGMENT INTER PARTES – ISSUE ESTOPPEL – RESPECTING WHAT MATTERS DECISION CONCLUSIVE – MATTERS NECESSARY TO THE DECISION – where parties engaged in building contract dispute – where some matters in dispute were referred to expert determination – where other matters in dispute were referred to arbitration – where arbitrator made award determining that certain agreements were entered into by the parties, and that certain documents formed part of those agreements – where arbitrator’s award also included findings in relation to other matters – where expert determination yet to be finalised – where arbitrator’s findings relevant to disputes awaiting expert determination – whether arbitrator’s findings were “essential” to his award so as to give rise to issue estoppels – whether respondent estopped in the expert determination from contending contrary to essential findings made by the arbitrator

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – OTHER CASES – where building dispute referred to arbitration – where arbitrator’s findings were essential to award – where arbitrator’s findings relevant to pending determinations by experts of other matters in dispute between the parties –whether declarations of issue estoppel should be made so as to preclude respondent in the expert determination from contending contrary to essential findings made by the arbitrator

ARBITRATION – THE AWARD – EFFECT AND PERFORMANCE – CONCLUSIVENESS OF AWARD – where arbitrator made award in building dispute – where award made findings as to contents of building contract and the performance of works – where arbitrator’s findings essential to award – where arbitrator’s findings also relevant to disputes awaiting expert determination – whether arbitrator’s award conclusive of matters also in dispute before the experts – whether respondent estopped in the expert determination from contending contrary to essential findings made by the arbitrator

CASES:

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 applied
Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 cited
Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2010] QCA 363 cited
Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2005] QSC 322 cited
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 cited
Murphy v Abi-Saab (1995) 37 NSWLR 280 cited
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 cited

COUNSEL:

D A Savage SC, with C…

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: [2011] QSC 174
Decision Date: 22 June 2011

CaseChat Overview and Summary

Northbuild Construction Pty Ltd sought relief from Discovery Beach Project Pty Ltd in relation to a building contract dispute. The parties had engaged in various forms of dispute resolution, including expert determination and arbitration. The arbitration had resulted in an award, which included findings relevant to the disputes awaiting expert determination. The expert determination had not yet been finalised. Northbuild sought declarations of issue estoppel, arguing that Discovery Beach was estopped from contending contrary to essential findings made by the arbitrator. Discovery Beach resisted the application.

The court was required to determine whether the arbitrator's findings were "essential" to the award so as to give rise to issue estoppels. The court also had to consider whether declarations of issue estoppel should be made to preclude Discovery Beach from contending contrary to the essential findings made by the arbitrator. The court had to balance the principles of finality and conclusiveness of the award against the need for consistency in the resolution of related disputes.

The court found that the arbitrator's findings were essential to the award, and therefore gave rise to issue estoppels. The court also found that declarations of issue estoppel should be made to preclude Discovery Beach from contending contrary to the essential findings made by the arbitrator. The court held that the principles of finality and conclusiveness of the award did not override the need for consistency in the resolution of related disputes. The court exercised its discretion to make the declarations, subject to certain undertakings being given.

The court made orders in the terms of Exhibit 2, subject to the giving of the undertakings in Exhibit 7. The orders included declarations of issue estoppel, precluding Discovery Beach from contending contrary to the essential findings made by the arbitrator. The orders also included provisions for the enforcement of the estoppels, and for the costs of the application.

Orders

Orders of the court

Upon the giving of the undertakings in Exhibit 7, there be orders in the terms of Exhibit 2.

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:	Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2011] QSC 174
PARTIES:	NORTHBUILD CONSTRUCTION PTY LTD ACN 011 063 764 (applicant) v DISCOVERY BEACH PROJECT PTY LTD ACN 100 500 981 (respondent)
FILE NO/S:	785 of 2010
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	22 June 2011
DELIVERED AT:	Brisbane
HEARING DATE:	30 May 2011
JUDGE:	Applegarth J
ORDER:	Upon the giving of the undertakings in Exhibit 7, there be orders in the terms of Exhibit 2.
CATCHWORDS:	ESTOPPEL – FORMER ADJUDICATION AND MATTERS OF RECORD OR QUASI OF RECORD – JUDGMENT INTER PARTES – ISSUE ESTOPPEL – RESPECTING WHAT MATTERS DECISION CONCLUSIVE – MATTERS NECESSARY TO THE DECISION – where parties engaged in building contract dispute – where some matters in dispute were referred to expert determination – where other matters in dispute were referred to arbitration – where arbitrator made award determining that certain agreements were entered into by the parties, and that certain documents formed part of those agreements – where arbitrator’s award also included findings in relation to other matters – where expert determination yet to be finalised – where arbitrator’s findings relevant to disputes awaiting expert determination – whether arbitrator’s findings were “essential” to his award so as to give rise to issue estoppels – whether respondent estopped in the expert determination from contending contrary to essential findings made by the arbitrator PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – DECLARATIONS – APPROPRIATE FORM OF RELIEF – DISCRETION OF COURT – OTHER CASES – where building dispute referred to arbitration – where arbitrator’s findings were essential to award – where arbitrator’s findings relevant to pending determinations by experts of other matters in dispute between the parties –whether declarations of issue estoppel should be made so as to preclude respondent in the expert determination from contending contrary to essential findings made by the arbitrator ARBITRATION – THE AWARD – EFFECT AND PERFORMANCE – CONCLUSIVENESS OF AWARD – where arbitrator made award in building dispute – where award made findings as to contents of building contract and the performance of works – where arbitrator’s findings essential to award – where arbitrator’s findings also relevant to disputes awaiting expert determination – whether arbitrator’s award conclusive of matters also in dispute before the experts – whether respondent estopped in the expert determination from contending contrary to essential findings made by the arbitrator
CASES:	Blair v Curran (1939) 62 CLR 464; [1939] HCA 23 applied Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 cited Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2010] QCA 363 cited Discovery Beach Project Pty Ltd v Northbuild Construction Pty Ltd [2005] QSC 322 cited Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 cited Murphy v Abi-Saab (1995) 37 NSWLR 280 cited Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 cited
COUNSEL:	D A Savage SC, with C…