Rocci v Diploma Construction Pty Ltd - [2001] WASC 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROCCI & ANOR -v- DIPLOMA CONSTRUCTION PTY LTD [2001] WASC 256

CORAM: TEMPLEMAN J

HEARD: 3 SEPTEMBER 2001

DELIVERED : 21 SEPTEMBER 2001

FILE NO/S: ARB 16 of 1999

BETWEEN: DAVID ROCCI
NAOLI ROCCI
Applicants
AND
DIPLOMA CONSTRUCTION PTY LTD
Respondent

FILE NO/S :ARB 17 of 1999

BETWEEN :DIPLOMA CONSTRUCTION PTY LTD
Applicant
AND
DAVID ROCCI
NAOLI ROCCI
Respondents

Catchwords:

Arbitration - Ambit of reference - Building contract - Dispute as to practical date of completion - Whether misconduct by Arbitrator - Exercise of discretion under Commercial Arbitration Act 1985 (WA), s 42(2)

Arbitration - Building contract - Application for leave to appeal against interim award - Whether report is an interim award - Commercial Arbitration Act 1985 (WA), s 38(5) - Turns on own facts

Legislation:

Commercial Arbitration Act 1985 (WA)

Result:

ARB 16 of 1999 - Award varied
ARB 17 of 1999 - Leave to appeal denied
Application dismissed

Category: B

Representation:

ARB 16 of 1999

Counsel:

Applicants: Mr A Metaxas
Respondent: Mr R Griffiths

Solicitors:

Applicants: Metaxas & Vernon
Respondent: Griffiths & Godecke

ARB 17 of 1999

Counsel:

Applicant: Mr A Metaxas
Respondents : Mr R Griffiths

Solicitors:

Applicant: Metaxas & Vernon
Respondents : Griffiths & Godecke

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

Gingis v Mount Scopus Memorial College Ltd [1998] VSCA 49
Larkin v Parole Board (1987) 10 NSWLR 57
Lock v Vulliamy (1833) 5B & AD 600
Promenade Investments Pty Ltd v New South Wales (1992) 26 NSWLR 203
UDR Equipment Pty Ltd v Afkos Industries Pty Ltd [2000] WASC 57

Case(s) also cited:

Gas & Fuel Corp of Victoria v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 385
Pioneer Shipping Limited v BTP Tioxide Ltd (The Nema) [1982] AC 724

TEMPLEMAN J: Mr and Mrs David Rocci are the owners of the residence at Lot 222 Brookvale Rise, Kallaroo which has been built for them by Diploma Construction Pty Ltd ("the builder"). On 6 March 1997, the owners entered into a lump sum building contract with the builder to complete the construction of the residence. The price for the works was $450,000.
The contract was in a standard form published by the Housing Industry Association Ltd. It contained an arbitration provision. Various disputes arising under the contract have been referred to arbitration and have resulted in the production of a number of interim awards.
These proceedings arise out of the third interim award. It was delivered on 14 March 2001 and dealt with the question whether practical completion had been achieved. The arbitrator held, in substance, that practical completion was deemed to have taken place on 14 September 2000, pursuant to cl 17(e) of the contract, because the owners had taken possession of the premises on that date.
The owners contend that the arbitrator misconducted himself, or erred in law, in reaching that conclusion.
The builder is also dissatisfied with the third interim award. The builder contends…

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 Rocci v Diploma Construction Pty Ltd

Details

AGLC: Rocci v Diploma Construction Pty Ltd [2001] WASC 256
Case: [2001] WASC 256
Decision Date

CaseChat Overview and Summary

David and Mrs Rocci engaged Diploma Construction Pty Ltd, a builder, to construct their residence at Lot 222 Brookvale Rise, Kallaroo. A dispute arose over whether practical completion had been achieved. The arbitrator found that practical completion was deemed to have taken place on 14 September 2000 under clause 17(e) of the contract because the owners had taken possession of the premises on that date. The owners argued the arbitrator erred in concluding that clause 17(e) applied without regard to the notice of termination of the contract. The builder argued the arbitrator erred in law by finding practical completion had not been achieved as at 28 August 2000 because certain work had not been carried out. The builder also contended the arbitrator's report of 26 June 2000 was an award. The court found that the arbitrator misconducted himself in determining practical completion was achieved on 14 September 2000 pursuant to clause 17(e) of the contract. However, the court declined to grant leave to appeal, finding there was no manifest error of law on the face of the third interim award.

The court set aside that part of the third interim award in which the arbitrator stated that practical completion was achieved on 14 September 2000 pursuant to clause 17(e) of the contract. The balance of the contract price claimed by the builder was held in abeyance until the issue of the final award. The court found that the arbitrator's report of 26 June 2000 was not an award and that the arbitrator did not err in law in finding practical completion had not been achieved as at 28 August 2000. The builder's application for leave to appeal was dismissed.

Orders