Winter v Somers - [2000] TASSC 33

[2000] TASSC 33

CITATION: Winter v Somers [2000] TASSC 33

WINTER, Stephen Guy
  WINTER, Merrilyn Kay
  v
  SOMERS, Michael
  SOMERS, Julie

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 4/2000
DELIVERED ON:  5 April 2000
DELIVERED AT:  Burnie
HEARING DATES:  5 April 2000
JUDGMENT OF:  Evans J

CATCHWORDS:

Procedure - Inferior courts - Tasmania - Local courts - Appeal and new trial - Appeal to Supreme Court - Generally - Stay of proceedings due to arbitration agreement - Proper exercise of discretion.

Commercial Arbitration Act 1986 (Tas), s53(1).
Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, applied.
Aust Dig Procedure [424]

REPRESENTATION:

Counsel:
           Appellants:  S G Wright
           Respondents:  P D Sullivan
Solicitors:
           Appellants:  Temple-Smith & Barclay
           Respondents:  Levis Stace & Cooper

Judgment Number: [2000] TASSC 33
Number of Paragraphs: 8

Serial No 33/2000
File No LCA 4/2000

STEPHEN GUY WINTER and MERRILYN KAY WINTER
v MICHAEL SOMERS and JULIE SOMERS

REASONS FOR JUDGMENT EVANS J
(DELIVERED ORALLY) 5 April 2000

By a building agreement dated 21 July 1998 the appellants agreed to build a dwelling for the respondents. The appellants instituted proceedings against the respondents in the Magistrates Court, civil division, claiming $11,067.17 as the balance amount due and payable to them pursuant to the building agreement.

The respondents successfully applied to the Magistrates Court for an order staying the appellants' proceedings. This is an appeal from that order. Such an order may be made pursuant to the Commercial Arbitration Act 1986, s53(1) ("the Act") which provides:
"53(1) If a party to an arbitration agreement commences proceedings in a court against another party to the arbitration agreement in respect of a matter agreed to be referred to arbitration by the agreement, that other party may, subject to subsection (2), apply to that court to stay the proceedings and that court, if satisfied ¾
(a)that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement; and
(b) that the applicant was at the time when the proceedings were commenced and still remains ready and willing to do all things necessary for the proper conduct of the arbitration ¾
may make an order staying the proceedings and may further give such directions with respect to the future conduct of the arbitration as it thinks fit."

The relevant provisions in the building agreement are in cl 26 and 27. They are as follows:

"26ALTERNATIVE DISPUTE RESOLUTION
(a)In the event of any dispute or difference between the parties to this agreement arising under this agreement, either party shall commence the dispute resolution procedure provided for by this Clause by giving written notice to the other party with whom the dispute exists.
(b)If the dispute is not resolved within ten days of such notice, the parties agree to deal with the dispute through the means set out in Clause (c).
…

(e)If the dispute is not settled within a reasonable time either party may terminate…

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 Winter v Somers

Details

AGLC: Winter v Somers [2000] TASSC 33
Case: [2000] TASSC 33
Decision Date: 5 April 2000

CaseChat Overview and Summary

The case of Winter v Somers involved an appeal by Stephen Guy Winter and Merrilyn Kay Winter against an order made by the Magistrates Court staying their proceedings against Michael Somers and Julie Somers. The respondents had successfully applied for the stay on the basis of an arbitration agreement contained within a building agreement. The appellants had instituted proceedings in the Magistrates Court seeking payment for the balance amount due under the building agreement. The respondents applied to the Magistrates Court to stay the proceedings pursuant to section 53(1) of the Commercial Arbitration Act 1986, which allows for a stay of proceedings if there is an arbitration agreement and the respondent was ready and willing to proceed with arbitration. The court was required to determine whether the Magistrates Court had properly exercised its discretion in staying the proceedings.

The court found that the provisions of the building agreement constituted an arbitration agreement for the purposes of the Act. The material before the Magistrates Court established that the claim pursued by the appellants was within the scope of the arbitration agreement. The respondents had filed an affidavit indicating their willingness and ability to proceed with arbitration, which was not challenged by the appellants. The Magistrates Court observed that arbitration would be quicker and cheaper than court proceedings and exercised its discretion to stay the proceedings in favour of arbitration. The appellants argued that the Magistrates Court had failed to give proper and adequate reasons for its decision, but the court found that the decision was adequately supported by the material before the court and the reasons provided, though brief, were sufficient to understand the basis for the decision.

The court held that the Magistrates Court had correctly exercised its discretion in staying the proceedings. The appellants had not demonstrated that the Magistrates Court had made an error in exercising its discretion. The court emphasised the principle that there is a strong presumption in favour of the correctness of decisions involving discretionary judgment, and that the decision should be affirmed unless it is clearly wrong. The court concluded that the appeal should be dismissed as the Magistrates Court had properly exercised its discretion to stay the proceedings in favour of arbitration.

Orders