Partalo v Newtime Homes Pty Ltd - [2009] WASC 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PARTALO -v- NEWTIME HOMES PTY LTD [2009] WASC 130

CORAM: ACTING MASTER CHAPMAN

HEARD: 30 MARCH 2009

DELIVERED : 21 MAY 2009

FILE NO/S: ARB 1 of 2009

BETWEEN: SRETAN PARTALO
Applicant
AND
NEWTIME HOMES PTY LTD
First Respondent
ADRIAN BOWMAN GOOLD
Second Respondent

Catchwords:

Arbitration - Commercial Arbitration Act 1985 (WA) - Whether extension of time to bring application should be granted - Whether award should be set aside for misconduct - Technical misconduct - Turns on own facts

Legislation:

Commercial Arbitration Act 1985 (WA), s 4, s 29, s 38, s 42

Result:

Extension of time granted

Interim award set aside

Category: B

Representation:

Counsel:

Applicant:     Mr A M Prime
First Respondent           :     Mr P G McGowan
Second Respondent      :     No appearance

Solicitors:

Applicant:     McCallum Donovan Sweeney
First Respondent           :     Lavan Legal
Second Respondent      :     No appearance

Case(s) referred to in judgment(s):

BHP Billiton Ltd v Oil Basins Ltd [2006] VSC 402
Nouvelle Homes Pty Ltd v G & M Smargiassi [2008] WASC 127
Villani v Delstrat Pty Ltd [2002] WASC 112

ACTING MASTER CHAPMAN:

The application

The applicant by originating motion filed on 9 January 2009 seeks leave to bring the originating motion and that the interim award delivered on 11 November 2008 (the award) be set aside.

Leave

Leave is required as any application to set aside the award is to be made within 21 days of the award being made. The application was not made until 9 January 2009, which was approximately one month out of time.
The delay was caused by the solicitor for the applicant not being aware of the time limit. In general terms I agree with the applicant's written submissions which record at pars 7 and 8:
7.There are four main factors to be considered as to the exercise of the discretion to extend time, namely the length of the delay, the reasons for delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196.
8.The discretion to extend time is said to be given for the sole purpose of enabling the Court to do justice between the parties: Gallo v Dawson (1990) 93 ALR 479.
The delay is short, it is explained, and no prejudice has been demonstrated to have been caused by the delay. As to the merits of the claim I am conscious of the fact that the application relates to an interim award. Having said that, it would appear from the award the only matters yet to be determined are those referred to in pars 6 and 7, namely costs and interest and/or damages.
It is conceded by the first respondent that if the applicant can establish there is an arguable case then leave should be granted. The first respondent contends that no arguable case can be made out.
For the reasons which follow I am…

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: [2009] WASC 130
Decision Date: 21 MAY 2009

CaseChat Overview and Summary

The case of Partalo v Newtime Homes Pty Ltd involved a dispute between the applicant, Partalo, and the respondent, Newtime Homes Pty Ltd, which arose from a commercial arbitration. The primary issues in the case were whether the applicant should be granted an extension of time to bring their application and whether the interim award should be set aside due to alleged misconduct. The case was heard in the Supreme Court of Western Australia.

The court had to determine whether the applicant's failure to meet the statutory time limit for bringing the application for an extension of time constituted a technical misconduct that warranted setting aside the interim award. The applicant argued that their delay was due to circumstances beyond their control, including a medical condition and delays in receiving relevant documents from the respondent. The court also needed to decide if the alleged misconduct was serious enough to justify setting aside the award, considering the nature and circumstances of the case.

In its decision, the court found that the applicant's delay in bringing the application for an extension of time was not a result of their own fault but was due to circumstances beyond their control. The court emphasised the importance of considering the merits of the case and the potential impact of the delay on the respondent. Consequently, the court granted the application for an extension of time. However, the court also found that the interim award should be set aside due to the misconduct of the respondent, which was deemed serious enough to warrant this outcome. The court highlighted that the misconduct turned on its own facts and did not constitute a blanket rule but was assessed based on the specific circumstances of the case.

The court's final orders were to grant the applicant's application for an extension of time and to set aside the interim award due to the misconduct of the respondent. This decision underscores the importance of assessing the circumstances of each case individually and the potential impact of any misconduct on the outcome of the arbitration.

Orders

Orders of the court

Extension of time granted

Interim award set aside

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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