Sea Containers Limited v ICT Pty Limited [2006] NSWCA 327

Sea Containers Limited v ICT Pty Limited [2006] NSWCA 327

The application for leave failed because each proposed question had to satisfy s 38(5) separately; the delay, although inordinate, did not justify an inference that the Board's capacity to assess the evidence and issues was impaired; and the Board's constructions of the guarantee clauses, the IMO Code clause, and the settlement agreements were open and did not disclose a manifest error of law or otherwise satisfy the statutory leave criteria.

Jurisdiction
Australia
Judgment Date
27 November 2006
Procedural Posture
Application for Leave to Appeal And, If Granted, Appeal From Dismissal of Application for Leave to Appeal From Arbitration Award / Court of Appeal Application for Leave to Appeal; Application and Appeal Heard Concurrently
Outcome
Application for leave to appeal dismissed with costs.
Legal Topics
['judicial Review of Arbitral Awards Under S 38 of the Commercial Arbitration Act 1984 (nsw)' 'delay in Delivery of Arbitration Award' 'manifest Error of Law on the Face of an Award' 'construction of Shipbuilding Contracts' 'guarantee Clauses' 'settlement Agreements' 'equitable Estoppel']
['arbitration' 'contract Law' 'administrative Law/procedural Fairness'] ['judicial Review of Arbitral Awards Under S 38 of the Commercial Arbitration Act 1984 (nsw)' 'delay in Delivery of Arbitration Award' 'manifest Error of Law on the Face of an Award' 'construction of Shipbuilding Contracts' 'guarantee Clauses' 'settlement Agreements' 'equitable Estoppel']

Case Brief

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Procedural Posture

Application for Leave to Appeal And, If Granted, Appeal From Dismissal of Application for Leave to Appeal From Arbitration Award / Court of Appeal Application for Leave to Appeal; Application and Appeal Heard Concurrently

Legal Issues

  1. 1 ['Whether, if one question of law satisfies s 38(5) of the Commercial Arbitration Act 1984 (NSW), other questions of law may also be pursued on appeal without separately satisfying the leave criteria.' 'Whether delay of more than 19 months after final written submissions and more than 21 months after completion of the hearing amounted to denial of procedural fairness and an error of law arising out of the award.' 'Whether the arbitrators made a manifest error of law in construing the guarantee clauses as excluding post-delivery liability for design defects.' 'Whether cl 1.03 of the building contracts imposed a contractual obligation to build the vessels in accordance with the IMO Code.' 'Whether the Board erred in its treatment of the Warranty Settlement Agreement and the Riva Settlement Agreement.']

Ratio Decidendi

The application for leave failed because each proposed question had to satisfy s 38(5) separately; the delay, although inordinate, did not justify an inference that the Board's capacity to assess the evidence and issues was impaired; and the Board's constructions of the guarantee clauses, the IMO Code clause, and the settlement agreements were open and did not disclose a manifest error of law or otherwise satisfy the statutory leave criteria.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • ['Application for leave to appeal dismissed with costs.']