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 2004JURISDICTION:
Equity Division
Technology and Construction ListJUDGMENT 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 1970CASES 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
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Wentworth v Rogers [2003] NSWSC 944PARTIES :
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…
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- AGLC
- Panmal Constructions Pty Ltd v Warringah Formwork Pty Ltd [2004] NSWSC 204
- Case
- [2004] NSWSC 204
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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