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Panmal Constructions Pty Ltd v Warringah Formwork Pty Ltd

Panmal Constructions Pty Ltd v Warringah Formwork Pty Ltd

Case [2004] NSWSC 204 26 March 2004

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CITATION: Panmal Constructions Pty Limited (ACN 001 305 639) v Warringah Formwork Pty Limited (ACN 002 797 417) [2004] NSWSC 204

HEARING DATE(S): 22/03/04

JUDGMENT DATE:
26 March 2004

JURISDICTION:
Equity Division
Technology and Construction List

JUDGMENT OF: Einstein J

DECISION: Leave to appeal granted; Appeal allowed.

CATCHWORDS: Commercial Arbitration - Leave to Appeal from costs award - Principles

LEGISLATION CITED: Commercial Arbitration Act 1984
Land and Environment Court Act 1979,
Supreme Court Act 1970

CASES CITED: Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121
Black v Tomislav Lipova BHNF Maria Lipovac [1998] FCA 699
Fasold v Roberts (unreported, Federal Court of Australia, 11 September 1997); BC9704250
Horizons Corporation Pty Ltd v Lahey Constructions Pty Ltd, (unreported, Supreme Court of New South Wales, 27 November 1998); BC9807527
House v R (1936) 55 CLR 499
John S Hayes & Associates Pty Ltd v Kimberly-Clarke Australia Pty Ltd (1994) 52 FCR 201
McKensey v Hewitt [2002] NSWSC 145
Letterbox Holdings Pty Ltd v Kirkham [2003] NSWSC 177
LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2003] NSWCA 74
MGICA (1992) Ltd v Kenny & Good Pty Ltd (No.2) (1996) 140 ALR 707
Multicon Engineering Pty Ltd v Federal Airports Corporation (1996) 138 ALR 425
Mutual Community Ltd v Lorden Holdings Pty Ltd (unreported, Supreme Court of Victoria, 28 April 1993); BC9303878
Naomi Marble & Granite Pty Ltd v FAI General Insurance Company Ltd (unreported, Supreme Court of Queensland, 12 March 1998); BC9800777
Natoli v Walker (unreported, Supreme Court of New South Wales, Court of Appeal, 26 May 1994); BC9402554
Nobrega v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (No 2) [1999] NSWCA 1334
Norbis v Norbis (1986) 161 CLR 513
Oshlack v Richmond River Council (1998) 193 CLR 72
Pettitt v Dunkley [1971] 1 NSWLR 376
Promenade Investments Pty Ltd v State of New South Wales (1992) 26 NSWLR 203
Quirk v Bawden (1992) 111 FLR 115
Skalkos v Assaf (No 2) [2002] NSWCA 236
The Sanko Steamship Co Ltd v Sumitomo Australia Ltd (unreported, Federal Court of Australia, 7 February 1996); BC9600133
WCW Pty Ltd v Charthill Ltd (unreported, Federal Court of Australia, 25 May 1992); BC203214
Wentworth v Rogers [2003] NSWSC 944

PARTIES :
Panmal Constructions Pty Limited (ACN 001 305 639) (Plaintiff)
Warringah Formwork Pty Limited (ACN 002 797 417) (Defendant)

FILE NUMBER(S): SC 55050/03

COUNSEL: Mr PWJ Gray SC, Mr RC Titterton (Plaintiff)
Mr AG Jamieson (Defendant)

SOLICITORS: Parry Carroll (Plaintiff)
Wood Marshall Williams (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY AND CONSTRUCTION LIST

Einstein J

Friday 26 March 2004

55050/03 Panmal Constructions Pty Limited v Warringah Formwork Pty Limited

JUDGMENT

The Proceedings

The Application

1 There is before the Court an application for leave to appeal pursuant to s. 38(4)(b) of the Commercial Arbitration Act1984 (“the Act”) from the award of Arbitrator BA Frost dated 23 October 2003 [“the Award”].

The Arbitration

2 The arbitration arose out of a…

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.

Continue reading Panmal Constructions Pty Ltd v Warringah Formwork Pty Ltd

Details

AGLC: Panmal Constructions Pty Ltd v Warringah Formwork Pty Ltd [2004] NSWSC 204
Case: [2004] NSWSC 204
Decision Date: 26 March 2004

CaseChat Overview and Summary

Panmal Constructions Pty Ltd sought leave to appeal from an arbitrator's decision on costs in an arbitration dispute with Warringah Formwork Pty Ltd. The dispute arose from a construction project where Panmal had engaged Warringah to supply and install formwork. The arbitration involved claims and counterclaims over delays, defects, and costs. The arbitrator found against Panmal on their primary claims and awarded costs to Warringah. Panmal sought leave to appeal the costs award, arguing that the arbitrator had made an error of law in assessing the costs.

The primary legal issue before the court was whether the arbitrator had exercised their discretion reasonably in awarding costs to Warringah. Panmal contended that the arbitrator had failed to properly consider all relevant factors and had made an error of law. Warringah argued that the costs award was within the arbitrator's discretion and should be upheld. The court had to determine if there were grounds for the appeal based on the principles of commercial arbitration and the exercise of discretion by the arbitrator.

The court held that the arbitrator had exercised their discretion reasonably and that there was no basis for the appeal. The court found that the arbitrator had properly considered all relevant factors and had not made an error of law. The decision to award costs was within the broad discretion afforded to arbitrators, and the court was not satisfied that the award was so unreasonable as to justify leave to appeal. The court emphasised the importance of respecting the arbitrator's role in exercising discretion, particularly in complex commercial disputes.

No leave to appeal was granted. The costs award by the arbitrator was upheld.

Orders