Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Northbuild Constructions Pty Ltd v Discovery Beach Project Pty Ltd [2008] QCA 160

PARTIES:

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

FILE NO/S:

Appeal No 7853 of 2007
SC No 11269 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

5 March 2008

JUDGES:

Muir JA, Mackenzie AJA and Atkinson J
Separate reasons for judgment of each member of the Court, Muir JA and Mackenzie AJA concurring as to the order made, Atkinson J dissenting

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the appellant and respondent entered into a contract for the construction of a high-rise development – where disputes arising under the building contract were referred to experts for expert determination – where the contract expressly required the expert not to act as an arbitrator – where the disputes involved questions of credit of witnesses – where the parties approved of a procedure formulated by the experts which involved taking oral evidence and permitting                 cross-examination of witnesses – whether, by agreement and by the way in which the expert determination was conducted, the nature of the proceedings was changed from expert determination to arbitration

ARBITRATION – THE SUBMISSION AND REFERENCE – HOW MATTERS MAY BE REFERRED – WHAT CONSTITUTES REFERENCE TO ARBITRATION – where disputes arising under the building contract were referred to experts for expert determination – where the contract expressly required the expert not to act as an arbitrator – where s 4 Commercial Arbitration Act 1990 (Qld) requires an agreement to refer a dispute to arbitration to be in writing – where the disputes involved questions of credit of witnesses – where the parties approved of a procedure formulated by the experts which involved taking oral evidence and permitting cross-examination of witnesses – where expert determination and arbitration may have characteristics of the other – whether, by agreement and by the way in which the expert determination was conducted, the nature of the proceedings was changed from expert determination to arbitration

Commercial Arbitration Act 1990 (Qld), s 4

AGE Ltd v Kwik Save Stores Ltd 2001 SC 144, cited
Age Old Builders Pty Ltd v Swintons Pty Ltd [2003] VSC 307, considered
APM Group (Aust) Pty Ltd v Galwin Pty Ltd [2006] VSC 325, cited
Arenson v Casson Beckman Rutley & Co [1977] AC 405, applied
Badgin Nominees Pty Ltd v Oneida Ltd [1998] VSC 188, considered
Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd [1989] 1 Qd R 8, cited
Edmund Barton Chambers (Level 44) Co-operative Limited v The Mutual Life & Citizens’ Assurance Co Ltd (1984) NSW ConvR 55-177, considered
Eureka Funds Management Ltd v Freehills Services Pty Ltd [2006] VSC 461, cited
Hammond v Wolt [1975] VR 108, cited

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Details
Case
[2008] QCA 160
Decision Date

CaseChat Overview and Summary

Northbuild Constructions Pty Ltd (the appellant) and Discovery Beach Project Pty Ltd (the respondent) were parties to a building contract for the construction of a high-rise development. Disputes arising under the contract were referred to experts for expert determination. The contract explicitly stipulated that the expert was not to act as an arbitrator. Despite this, the disputes involved questions of witness credibility, leading the parties to endorse a procedure formulated by the experts that included taking oral evidence and permitting cross-examination of witnesses. This situation raised the question of whether the expert determination had been transformed into arbitration through the parties' agreement and the manner in which the proceedings were conducted.

The primary legal issues revolved around whether the nature of the expert determination had been altered to arbitration due to the parties' approval of the experts' procedure and the involvement of witness credibility. Given the express requirement in the contract that the expert should not act as an arbitrator, and the statutory provision under s 4 of the Commercial Arbitration Act 1990 (Qld) that an agreement to refer a dispute to arbitration must be in writing, the court had to determine whether the procedural changes implemented by the parties had the effect of converting the expert determination into arbitration. The court examined the extent to which the procedural steps and the involvement of witness credibility aligned with the characteristics of arbitration rather than expert determination.

The court found that despite the procedural changes and the involvement of witness credibility, the expert determination did not transform into arbitration. The court reasoned that the parties' agreement and the procedural changes did not meet the statutory requirement for a written agreement to refer a dispute to arbitration. Furthermore, the court held that the involvement of witness credibility did not inherently convert the proceedings into arbitration. The court concluded that the expert determination remained as such, and the dispute resolution process did not shift to arbitration. Consequently, the appeal was dismissed with costs awarded to the respondent.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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