Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd - [2010] QSC 94

SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] QSC 94

PARTIES:

NORTHBUILD CONSTRUCTION PTY LTD
(applicant)
v
DISCOVERY BEACH PROJECT PTY LTD
(respondent)

FILE NO/S:

10086 of 2009

10155 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

24 and 25 November 2009

JUDGE:

Martin J

ORDER:

On the application by Northbuild Construction Pty Ltd:
THAT THE AWARD BE REMITTED TO THE ARBITRATOR
On the application by Discovery Beach Project Pty Ltd:
THAT THE APPLICATION IS ADJOURNED TO A DATE TO BE FIXED

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – where the applicant and respondent agreed in an amendment to a building contract not to make claims or deductions from amounts payable to the applicant unless by consent – where amounts owed by the applicant to the respondent were not to be taken into account – where the matter went to arbitration – where amounts owed by the applicant to the respondent were taken into account by the arbitrator – whether this was a manifest error of law

ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – where a building matter went to arbitration – where the arbitrator reached a conclusion – whether there was sufficient evidence on the face of the award to allow the arbitrator to make any finding –
whether the arbitrator gave sufficient reasons

ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where a building matter went to arbitration – where the arbitrator did not consider specific variation orders – where the specific variation orders were mentioned in pleadings, written submissions and/or amounted to a defects and omissions notice – whether this amounted to misconduct on behalf of the arbitrator

ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where a building matter went to arbitration – where errors were made by a quantity surveyor in preparing specific payment certificates – where the arbitrator relied upon the incorrect payment certificates – whether this was a breach of natural justice

ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where a building matter went to arbitration – where errors were made by a quantity surveyor in preparing specific payment certificates – whether s 30 Commercial Arbitration Act 1990 (Qld) permits an arbitrator to correct a payment certificate

Commercial Arbitration Act 1990 (Qld), s29, s 30, s 38, s 42

Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462
Hewitt v McKensey [2003] NSWSC 1186
Kleerstyle Homes v Dixon (unreported, SC 8037 of 1997, 16 September 1997)
M1 v L1 [2007] NSWSC 346
Natoli v Walker (1994) 217 ALR 201
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 1) [2005] 2 Qd R 174
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 2) [2005] 2 Qd R 180
Oil…

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: [2010] QSC 94
Decision Date: 9 April 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd involved a dispute between two parties who had entered into a building contract and subsequently agreed to an amendment. The amendment stipulated that no claims or deductions could be made from the amounts payable to Northbuild unless agreed upon by both parties. Additionally, any amounts owed by Northbuild to Discovery Beach were not to be considered in the calculation of the payable amounts. The matter proceeded to arbitration, where the arbitrator took into account the amounts owed by Northbuild to Discovery Beach, a point contested by Northbuild.

The primary legal issues before the court were whether the arbitrator's consideration of the amounts owed by Northbuild to Discovery Beach constituted a manifest error of law and whether there was sufficient evidence on the face of the award to support the arbitrator's conclusion. Northbuild argued that the arbitrator's decision contravened the clear terms of the amendment, which expressly excluded consideration of these amounts. Discovery Beach, on the other hand, contended that the arbitrator's decision was within the scope of their powers and authority.

The court found that the arbitrator had indeed made a manifest error of law by taking into account the amounts owed by Northbuild to Discovery Beach, as this was explicitly excluded by the terms of the contract amendment. Furthermore, the court determined that the arbitrator's decision lacked sufficient evidence to support the conclusion reached. Consequently, the court ordered that the award be remitted to the arbitrator for reconsideration, excluding the amounts owed by Northbuild to Discovery Beach from any future calculations. Additionally, the court adjourned Discovery Beach's application to a later date to be determined.

Orders

Orders of the court

On the application by Northbuild Construction Pty Ltd:

THAT THE AWARD BE REMITTED TO THE ARBITRATOR

On the application by Discovery Beach Project Pty Ltd:

THAT THE APPLICATION IS ADJOURNED TO A DATE TO BE FIXED

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 [2010] QSC 94
PARTIES:	NORTHBUILD CONSTRUCTION PTY LTD (applicant) v DISCOVERY BEACH PROJECT PTY LTD (respondent)
FILE NO/S:	10086 of 2009 10155 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	24 and 25 November 2009
JUDGE:	Martin J
ORDER:	On the application by Northbuild Construction Pty Ltd: THAT THE AWARD BE REMITTED TO THE ARBITRATOR On the application by Discovery Beach Project Pty Ltd: THAT THE APPLICATION IS ADJOURNED TO A DATE TO BE FIXED
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – where the applicant and respondent agreed in an amendment to a building contract not to make claims or deductions from amounts payable to the applicant unless by consent – where amounts owed by the applicant to the respondent were not to be taken into account – where the matter went to arbitration – where amounts owed by the applicant to the respondent were taken into account by the arbitrator – whether this was a manifest error of law ADMINISTRATIVE LAW – JUDICIAL REVIEW – ERROR OF LAW – where a building matter went to arbitration – where the arbitrator reached a conclusion – whether there was sufficient evidence on the face of the award to allow the arbitrator to make any finding – whether the arbitrator gave sufficient reasons ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where a building matter went to arbitration – where the arbitrator did not consider specific variation orders – where the specific variation orders were mentioned in pleadings, written submissions and/or amounted to a defects and omissions notice – whether this amounted to misconduct on behalf of the arbitrator ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where a building matter went to arbitration – where errors were made by a quantity surveyor in preparing specific payment certificates – where the arbitrator relied upon the incorrect payment certificates – whether this was a breach of natural justice ADMINISTRATIVE LAW – JUDICIAL REVIEW – NATURAL JUSTICE – where a building matter went to arbitration – where errors were made by a quantity surveyor in preparing specific payment certificates – whether s 30 Commercial Arbitration Act 1990 (Qld) permits an arbitrator to correct a payment certificate Commercial Arbitration Act 1990 (Qld), s29, s 30, s 38, s 42 Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 Hewitt v McKensey [2003] NSWSC 1186 Kleerstyle Homes v Dixon (unreported, SC 8037 of 1997, 16 September 1997) M1 v L1 [2007] NSWSC 346 Natoli v Walker (1994) 217 ALR 201 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 1) [2005] 2 Qd R 174 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 2) [2005] 2 Qd R 180 Oil…