RIVERLEA CORPORATION PTY LTD -v- BOCOL CONSTRUCTIONS PTY LTD [2007] WASC 317

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 317
Case No:	ARB:5/2007	Heard:	10 & 11 OCTOBER 2007
Coram:	McKECHNIE J	Delivered:	19/12/07
No of pages:	37	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	RIVERLEA CORPORATION PTY LTD BOCOL CONSTRUCTIONS PTY LTD KEVIN JOSEPH LUXFORD
Catchwords:	Commercial arbitration Power to remit Mistake made by party
Legislation:	Commercial Arbitration Act 1985 (WA), s 43, s 30, s 38
Case References:	Bandwith Shipping Corp v Intaari (2007) EWCA Civ 998 Bovis Lend Lease Pty Ltd v WGE Pty Ltd [2002] NSWSC 939 Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 Imperial Leatherwear Co Pty Ltd v Macri & Marcellino Pty Ltd (1991) 22 NSWLR 653 Minister for Industrial Affairs v Civil Tech Pty Ltd [2003] SASC 40; (2003) 84 SASR 559 Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 2) [2005] QSC 46; (2005) 2 Qd R 180 Sabemo Pty Ltd v Malaysia Hotel Australia Pty Ltd (Unreported, NSWSC, Library No 55007, 4 June 1992) The Marriage of F [2001] 1 Fam Ca 348; 161 FLR 189 Uszok v Henley Properties (NSW) Pty Ltd [2007] NSWCA 31

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RIVERLEA CORPORATION PTY LTD -v- BOCOL CONSTRUCTIONS PTY LTD [2007] WASC 317 CORAM : McKECHNIE J HEARD : 10 & 11 OCTOBER 2007 DELIVERED : 20 DECEMBER 2007 FILE NO/S : ARB 5 of 2007 BETWEEN : RIVERLEA CORPORATION PTY LTD

Applicant

AND

BOCOL CONSTRUCTIONS PTY LTD

First Respondent

KEVIN JOSEPH LUXFORD

Second Respondent

Catchwords:

Commercial arbitration - Power to remit - Mistake made by party

Legislation:

Commercial Arbitration Act 1985 (WA), s 43, s 30, s 38

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr P J Hannan

First Respondent : Mr M Orlov

Second Respondent : No appearance

Solicitors:

Applicant : Hammond King Touyz

First Respondent : J D Finlay & Co

Second Respondent : No appearance

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

Bandwith Shipping Corp v Intaari (2007) EWCA Civ 998
Bovis Lend Lease Pty Ltd v WGE Pty Ltd [2002] NSWSC 939
Commonwealth of Australia v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662
Imperial Leatherwear Co Pty Ltd v Macri & Marcellino Pty Ltd (1991) 22 NSWLR 653
Minister for Industrial Affairs v Civil Tech Pty Ltd [2003] SASC 40; (2003) 84 SASR 559
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (No 2) [2005] QSC 46; (2005) 2 Qd R 180
Sabemo Pty Ltd v Malaysia Hotel Australia Pty Ltd (Unreported, NSWSC, Library No 55007, 4 June 1992)
The Marriage of F [2001] 1 Fam Ca 348; 161 FLR 189
Uszok v Henley Properties (NSW) Pty Ltd [2007]…

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: [2007] WASC 317
Decision Date: 20 December 2007

CaseChat Overview and Summary

The case involved a dispute between Riverlea Corporation Pty Ltd and Bocol Constructions Pty Ltd, which was subject to commercial arbitration. The primary issue arose from a mistake made by one of the parties during the arbitration process. The court was tasked with determining whether the arbitration tribunal had the power to remit the case back to the arbitrators for correction of the mistake, and if so, under what circumstances.

The central legal question was whether the court had the authority to remit the case to the arbitrators for correction of an error made by one of the parties. The court examined the relevant statutory provisions and case law to establish the scope of its power to remit in such circumstances. It considered whether the error significantly affected the outcome of the arbitration and whether it was feasible to correct the mistake without fundamentally altering the arbitration process.

The court held that it did have the power to remit the case back to the arbitrators to correct the mistake. It found that the error made by the party had a substantial impact on the outcome of the arbitration and that it was feasible to correct the mistake without fundamentally altering the arbitration process. The court's decision was based on a balance between the need for finality in arbitration outcomes and the importance of ensuring that the arbitration process was fair and just. The court dismissed the application, affirming the tribunal's power to remit in such circumstances.

Orders

Orders of the court

1. Application dismissed.

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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