Structural Monitoring Systems Ltd v Tulip Bay Pty Ltd

Structural Monitoring Systems Ltd (SMS) appealed against the decision of the primary judge who dismissed SMS's application to set aside an arbitral award in a dispute with Tulip Bay Pty Ltd (Tulip Bay). The award was made in relation to a contract between the parties for the supply and installation of a structural monitoring system at a commercial building in Sydney. SMS argued that the award should be set aside due to alleged misconduct by the arbitrators, excessive delay in delivering the award, and denial of procedural fairness. The appeal was heard in the Supreme Court of Western Australia.

The court had to decide whether the alleged misconduct of the arbitrators was sufficient to warrant setting aside the award. The misconduct included the failure to follow the agreed procedure for appointing arbitrators, and the determination of the matter by two arbitrators rather than the full tribunal of three. The court also had to determine if the delay in delivering the award was unreasonable and whether there was a denial of procedural fairness. The primary judge found that the alleged misconduct did not amount to a substantial miscarriage of justice or materially prejudice SMS in a respect relevant to the outcome of the arbitration.

The court held that the alleged misconduct of the arbitrators did not amount to a substantial miscarriage of justice or materially prejudice SMS in a respect relevant to the outcome of the arbitration. The court held that the delay in delivering the award was not unreasonable and that there was no denial of procedural fairness. The court agreed with the primary judge's findings and dismissed the appeal. The court emphasised that the threshold for setting aside an arbitral award on the ground of misconduct is high and that the court will only intervene where there has been a substantial miscarriage of justice or material prejudice to a party.

The appeal was dismissed and SMS was ordered to pay Tulip Bay's costs of the appeal. The arbitral award remained in place and binding on both parties.