Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd - [2010] QSC 97

SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd [2010] QSC 97

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:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

31 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

3 March 2010

JUDGE:

A Lyons J

ORDER:

The application for a stay of the proceeding is refused

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where a building contract between a developer and builder exists – where disputes arising under contract can be referred to expert determination or arbitration – where disputes arose and both resolution processes were employed – where findings in arbitration award were made – where builder seeks declarations that the developer be estopped from contending otherwise than in accordance with the arbitration award findings – where developer seeks a stay of the builder’s proceedings seeking declarations – whether the contract provides a dispute resolution process for the dispute –whether the dispute should be determined by the court.

Homepace Ltd v Sita South East Ltd [2007] EWHC 629
Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2007] QSC 206
Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2008] QCA 160
Zeke Services Pty Ltd v Traffic Technologies [2005] 2 Qd R 563

COUNSEL:

D Savage SC and C Wilkins for the applicant/respondent
B Porter for the respondent/applicant

SOLICITORS:

DLA Phillips Fox for the applicant/respondent
Clayton Utz for the respondent/applicant

A LYONS J:
Background

In May 2003 Northbuild Constructions Pty Ltd (Northbuild) as the builder and Discovery Beach Project Pty Ltd (DBP) as the developer entered into a contract to redevelop the property known as “Surfair” on the Sunshine Coast near Marcoola, Queensland. By May 2004 the parties were in dispute. The parties remain in dispute about numerous matters and there has been protracted litigation over the last six years. Those disputes have resulted in a number of applications and trials before this Court as well as a number of appeals to the Court of Appeal.

The latest dispute concerns findings made in an arbitration by an arbitrator Mr Fischer in June 2009. That arbitration process was provided for by the contract. Expert determination is also provided for by the contract. The issue which arises relates to the relevant interrelationship between the arbitration and the expert determination process and the extent to which findings made by the arbitrator bind the experts. In particular, the dispute relates to findings made as to the constitution and terms of a building contract and whether the parties are precluded from seeking to re-agitate those issues in the expert determination.

By its originating application filed on 25 January 2010, Northbuild seeks declarations that DBP is estopped from contending, other than in accordance with the matters contained in the 17 extracts in the reasons given in an award in the Waves Arbitration on…

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 97
Decision Date: 31 March 2010

CaseChat Overview and Summary

Northbuild Construction Pty Ltd, the builder, brought an application against Discovery Beach Project Pty Ltd, the developer, seeking declarations that the developer be estopped from contending otherwise than in accordance with the findings in an arbitration award that resolved disputes between the parties. Discovery Beach sought a stay of the proceedings, arguing that the contract between the parties did not provide for the dispute to be resolved by the court. The Federal Court was tasked with determining whether the contract provided a dispute resolution process for the dispute and whether the dispute should be determined by the court.

The court considered the terms of the contract and the nature of the dispute. It found that the contract provided for disputes to be referred to expert determination or arbitration, and that the parties had employed both processes in the past. The court held that the dispute in question was properly referred to arbitration and that the findings in the arbitration award were binding on both parties. The court also found that the developer was estopped from contending otherwise than in accordance with the findings in the arbitration award. The court rejected the developer's argument that the dispute should not be determined by the court and held that the builder was entitled to seek declarations to enforce the arbitration award.

The court refused the developer's application for a stay of the proceedings and dismissed the developer's argument that the dispute should not be determined by the court. The court held that the builder was entitled to seek declarations to enforce the arbitration award and that the developer was estopped from contending otherwise than in accordance with the findings in the arbitration award. The court's decision reinforces the importance of parties adhering to the dispute resolution processes set out in their contracts and the binding nature of arbitration awards.

Orders

Orders of the court

The application for a stay of the proceeding is refused

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 97
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:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court
DELIVERED ON:	31 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	3 March 2010
JUDGE:	A Lyons J
ORDER:	The application for a stay of the proceeding is refused
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where a building contract between a developer and builder exists – where disputes arising under contract can be referred to expert determination or arbitration – where disputes arose and both resolution processes were employed – where findings in arbitration award were made – where builder seeks declarations that the developer be estopped from contending otherwise than in accordance with the arbitration award findings – where developer seeks a stay of the builder’s proceedings seeking declarations – whether the contract provides a dispute resolution process for the dispute –whether the dispute should be determined by the court. Homepace Ltd v Sita South East Ltd [2007] EWHC 629 Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2007] QSC 206 Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2008] QCA 160 Zeke Services Pty Ltd v Traffic Technologies [2005] 2 Qd R 563
COUNSEL:	D Savage SC and C Wilkins for the applicant/respondent B Porter for the respondent/applicant
SOLICITORS:	DLA Phillips Fox for the applicant/respondent Clayton Utz for the respondent/applicant