Thierfelder v Kerrigan - [2024] WASC 112

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THIERFELDER -v- KERRIGAN [2024] WASC 112
CORAM:   LUNDBERG J
HEARD:   4 APRIL 2024
DELIVERED          :   9 APRIL 2024
FILE NO/S:   ARB 2 of 2024
BETWEEN:   JOCELYN LOUISE THIERFELDER
First Plaintiff
JEFFREY JAY THIERFELDER
Second Plaintiff
AND
MARK KERRIGAN
Defendant

Catchwords:

Arbitration - Application to enforce awards pursuant to s 35 of the Commercial Arbitration Act 2012 (WA) - Applications in accordance with the requirements of the Commercial Arbitration Act 2012 (WA) and Supreme Court (Arbitration) Rules 2016 (WA) - No basis identified for enforcement to be refused - Legislative policy of minimal curial intervention - No residual discretion to refuse to enforce - Orders made for enforcement

Legislation:

Commercial Arbitration Act 1985 (WA), s 33 (repealed)
Commercial Arbitration Act 2012 (WA), s 1C, s 5, s 35 and s 36
International Arbitration Act 1974 (Cth), s 8
Rules of the Supreme Court 1971 (WA), O 1 r 4A and O 1 r 4B
Supreme Court (Arbitration) Rules 2016 (WA), r 24

Result:

Orders made to enforce interim award and final award

Category: B

Representation:

Counsel:

First Plaintiff	:	H M O'Sullivan
Second Plaintiff	:	H M O'Sullivan
Defendant	:	J Jacobson

Solicitors:

First Plaintiff	:	McCabes
Second Plaintiff	:	McCabes
Defendant	:	Jacobson and Associates

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

Cameron Australasia Pty Ltd v AED Oil Ltd [2015] VSC 163
CBI Constructors Pty Ltd v Chevron Australia Pty Ltd [2023] WASCA 1
Hub Street Equipment Pty Ltd v Energy City Qatar Holding Company [2021] FCAFC 110; 396 ALR 1
Ivankovic v Western Australian Planning Commission [2020] WASC 40
Spaseski v Mladenovski [2019] WASC 65
TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia [2013] HCA 5; (2013) 251 CLR 533
The State of Western Australia v Mineralogy Pty Ltd [2020] WASC 58
Venetian Nominees Pty Ltd v Weatherford Australia Pty Ltd [2021] WASC 137

Table of Contents

A. Introduction

B. Evidentiary material

C. Factual background

D. The positions of the parties

E. Disposition

F. Conclusion and orders

LUNDBERG J:

A. Introduction

On 14 February 2024, the plaintiffs applied by originating summons for orders pursuant to s 35(1) of the Commercial Arbitration Act 2012 (WA) (Act) to enforce two awards obtained in their favour. The awards were made in connection with disputes between the plaintiffs (as home owners) and the defendant (as builder) arising from a residential building contract.
Section 35(1) of the Act states:
An arbitral award, irrespective of the State or Territory in which it was made, is to be recognised in this State as binding and, on application in writing to the Court, is to be enforced subject to the provisions of this section and section 36.
The curial process by which an arbitral award is 'enforced' involves the enforcement of the obligations created by the award in substitution for the rights and liabilities which were the subject of the dispute that was referred to arbitration.[1] The…

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: [2024] WASC 112
Decision Date: 9 APRIL 2024

CaseChat Overview and Summary

In Thierfelder v Kerrigan, the court dealt with an application to enforce an arbitration award. The applicant, Thierfelder, sought to enforce an arbitration award against the respondent, Kerrigan. The dispute arose from a commercial agreement between the parties, and the arbitration was conducted under the Commercial Arbitration Act 2012 (WA). The court's role was to determine whether the award should be enforced as a judgment of the court, in accordance with the statutory provisions and the rules of the Supreme Court.

The legal issues before the court involved whether the enforcement of the arbitration award should be refused on any basis identified under the Act. The applicant argued that the award should be enforced, while the respondent contended that enforcement should be refused. The court had to consider whether there were any valid grounds for refusal of enforcement as per the statutory framework and the procedural rules.

The court held that there was no basis identified for refusing to enforce the arbitration award. It emphasised the legislative policy of minimal curial intervention in arbitration matters and the absence of a residual discretion to refuse enforcement. The court found that the applicant had complied with the requirements of the Act and the rules, and there were no valid reasons to depart from enforcing the award. The court's reasoning was grounded in the principle that the courts should intervene only where there are clear statutory grounds for non-enforcement.

Consequently, the court made orders for the enforcement of the arbitration award. The respondent was directed to comply with the terms of the award, and the applicant was granted the relief sought. The court's decision underscored the importance of adhering to the statutory framework and procedural rules in arbitration enforcement matters.

Orders