Spaseski v Mladenovski - [2019] WASC 65

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   SPASESKI -v- MLADENOVSKI [2019] WASC 65
CORAM:   KENNETH MARTIN J
HEARD:   29 JANUARY 2019
DELIVERED          :   5 MARCH 2019
FILE NO/S:   ARB 13 of 2018
BETWEEN:   MOMCULA SPASESKI
First Plaintiff
JASMINKA SPASESKA
Second Plaintiff
AND
CVETAN MLADENOVSKI
Defendant

FILE NO/S: ARB 14 of 2018
BETWEEN: CVETAN MLADENOVSKI
Plaintiff
AND
MOMCULA SPASESKI
First Defendant
JASMINKA SPASESKA
Second Defendant

Catchwords:

Arbitration - Cross-applications to enforce awards and to set aside - Small scale domestic residential building dispute - Four day arbitration - Alleged failure to sufficiently allow claimant builder to present his case by not allowing him to give evidence - Alleged public policy violation by alleged failure to afford natural justice - Last half day of arbitration completed in builder's absence due to ill health and hospital admission - Builder's case rejected and judgment and indemnity costs awarded against him by arbitrator

Legislation:

Commercial Arbitration Act 2012 (WA)

Result:

Application to enforce awards granted
Application to set aside awards refused

Representation:

ARB 13 of 2018

Counsel:

First Plaintiff	:	Mr A J C Mossop
Second Plaintiff	:	Mr A J C Mossop
Defendant	:	Mr S D Majteles

Solicitors:

First Plaintiff	:	Jackson McDonald
Second Plaintiff	:	Jackson McDonald
Defendant	:	Fletcher Law

ARB 14 of 2018

Counsel:

Plaintiff	:	Mr S D Majteles
First Defendant	:	Mr A J C Mossop
Second Defendant	:	Mr A J C Mossop

Solicitors:

Plaintiff	:	Fletcher Law
First Defendant	:	Jackson McDonald
Second Defendant	:	Jackson McDonald

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

AKN v ALC [2015] SGCA 18
Amasya Enterprises Pty Ltd v Asta Developments (Aust) Pty Ltd [2016] VSC 32
Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163
Grand Pacific Holdings Ltd v Pacific China Holdings Ltd (in liq) (No 1) [2012] 4 HKLRD 1
Indian Farmers Fertiliser Cooperative Ltd v Gutnick [2015] VSC 724; (2015) 304 FLR 199
TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361
TCL Air Conditioner (Zhongshan) Company Ltd v Castel Electronics Pty Ltd [2014] FCAFC 83; (2014) 311 ALR 387
TCL Air Conditioner (Zhongshan) Company Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533
Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2015] 1 SLR 114

KENNETH MARTIN J:

The applications

The counterpart applications which are ARB 13 of 2018 and ARB 14 of 2018 were heard together before me on 29 January 2019 (together 'the present applications').

ARB 13 of 2018

By ARB 13 of 2018 the plaintiffs, Mr and Mrs Spaseski (who I refer to together as 'the Owners'), seek orders pursuant to s 35 of the Commercial Arbitration Act 2012 (WA) (the CA Act) for the 'enforcement' of a partial final award dated 10 September 2018 and a following final award dated 6 October 2018 against the defendant, a Mr Cvetan Mladenovski (who I will refer to as 'the Builder').
The Builder resists the Owners'…

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: [2019] WASC 65
Decision Date: 5 MARCH 2019

CaseChat Overview and Summary

The matter before the court involved a dispute between the builder, Spaseski, and the homeowner, Mladenovski, over a small-scale domestic residential building project. The dispute arose from an arbitration conducted over four days, where the builder sought to enforce an award and the homeowner sought to set it aside. The builder claimed that the arbitration process did not allow him to sufficiently present his case due to an alleged failure by the arbitrator to permit him to give evidence. Additionally, the builder argued that the arbitrator's failure to allow him to present his case violated natural justice and public policy. The builder was absent for the last half day of the arbitration due to ill health and a hospital admission. The builder's case was ultimately rejected, and judgment and indemnity costs were awarded against him by the arbitrator.

The court was required to determine whether the builder's claims regarding the arbitration process were valid. The key issues included whether the builder was adequately allowed to present his case, and whether the arbitrator's actions breached natural justice and public policy. The court also needed to consider the impact of the builder's absence due to ill health on the arbitration process and the builder's case.

In considering the builder's claims, the court examined the arbitration process and the arbitrator's decisions. The court found that the builder was indeed allowed to present his case, including calling witnesses and submitting evidence. The court held that the arbitrator's decision to proceed with the arbitration in the builder's absence due to ill health did not breach natural justice or public policy. The court also concluded that the builder's absence did not significantly impact the outcome of the arbitration. Therefore, the court dismissed the builder's cross-application to set aside the arbitrator's decision and upheld the judgment and indemnity costs awarded against the builder.

The court's final orders were that the builder's cross-application to set aside the arbitrator's decision was dismissed, and the judgment and indemnity costs awarded against the builder were upheld. The court found that the arbitration process was fair and that the builder's claims regarding the process were without merit. The builder was ordered to pay the costs of the homeowner's application.

Orders