WGE Pty Limited v South East Fibre Exports Pty Ltd; South East Fibre Exports Pty Ltd v WGE Pty Limited [2006] NSWSC 60

WGE Pty Limited v South East Fibre Exports Pty Ltd; South East Fibre Exports Pty Ltd v WGE Pty Limited [2006] NSWSC 60

WGE's leave challenges failed because the arbitrator's findings that Harris-Daishowa had considered damages may not be adequate and had not elected to accept the Equipment were factual conclusions open on the material and did not disclose manifest error or strong evidence of error of law. A direction was appropriate that Harris-Daishowa's compensation for work taken over and completed be assessed under GC30.6. Harris-Daishowa was entitled to leave and success on appeal in relation to WGE's Boom Equipment weight claim because the arbitrator decided it on an unpleaded express contractual basis, rather than the pleaded implied-term basis, and that manifest error substantially affected...

Jurisdiction
Australia
Judgment Date
03 March 2006
Procedural Posture
Applications for Leave to Appeal From an Interim Arbitral Award Under S 38 of the Commercial Arbitration Act 1984 and for Directions Under S 43 of the Commercial Arbitration Act 1984 / Supreme Court Equity Division Technology & Construction List Determination of Leave Applications and Appeals From Interim Award on Liability
Outcome
WGE's application for leave to appeal was dismissed; WGE's application for directions under s 43 in respect of GC30.6 succeeded. Harris-Daishowa was granted leave to appeal and succeeded on WGE's Claim No. 1 concerning Boom Equipment weight and on the As-Built drawings claim; its application concerning the shipping...
Legal Topics
['leave to Appeal From Arbitral Award' 'manifest Error of Law on the Face of the Award' 'directions to Arbitrator' 'show Cause Notice Under Construction Contract' 'election to Accept Equipment' 'contractual Variation' 'unpleaded Basis of Decision' 'delay Damages' 'as Built Drawings']
['arbitration' 'contract Law' 'construction Law' 'trade Practices'] ['leave to Appeal From Arbitral Award' 'manifest Error of Law on the Face of the Award' 'directions to Arbitrator' 'show Cause Notice Under Construction Contract' 'election to Accept Equipment' 'contractual Variation' 'unpleaded Basis of Decision' 'delay Damages' 'as Built Drawings']

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Procedural Posture

Applications for Leave to Appeal From an Interim Arbitral Award Under S 38 of the Commercial Arbitration Act 1984 and for Directions Under S 43 of the Commercial Arbitration Act 1984 / Supreme Court Equity Division Technology & Construction List Determination of Leave Applications and Appeals From Interim Award on Liability

Legal Issues

  1. 1 ['Whether the arbitrator erred in finding that Harris-Daishowa considered damages may not be an adequate remedy before issuing a show cause notice under GC30.2.' 'Whether Harris-Daishowa elected to accept the equipment, or breached GC23.7, by using parts of the shiploading facility.' "Whether Harris-Daishowa's compensation for work taken out of WGE's hands should be assessed under GC30.6." "Whether the arbitrator erred in allowing WGE's variation claim for increased weight of Boom Equipment on an unpleaded express contractual basis." 'Whether Harris-Daishowa had established a claim for costs related to delays to shiploading.' 'Whether the arbitrator erred in treating the obligation to provide As-Built drawings as not being work under the Contract.']

Ratio Decidendi

WGE's leave challenges failed because the arbitrator's findings that Harris-Daishowa had considered damages may not be adequate and had not elected to accept the Equipment were factual conclusions open on the material and did not disclose manifest error or strong evidence of error of law. A direction was appropriate that Harris-Daishowa's compensation for work taken over and completed be assessed under GC30.6. Harris-Daishowa was entitled to leave and success on appeal in relation to WGE's Boom Equipment weight claim because the arbitrator decided it on an unpleaded express contractual basis, rather than the pleaded implied-term basis, and that manifest error substantially affected...

Court Disposition

WGE's application for leave to appeal was dismissed; WGE's application for directions under s 43 in respect of GC30.6 succeeded. Harris-Daishowa was granted leave to appeal and succeeded on WGE's Claim No. 1 concerning Boom Equipment weight and on the As-Built drawings claim; its application concerning the shipping...

Orders

  • ["WGE's application for leave to appeal fails." "WGE's application for directions in respect of GC30.6 succeeds." "Harris-Daishowa is granted leave to appeal against the arbitrator's finding on WGE's Claim No. 1, the claim for a variation in respect of the alleged term as to the weight of the Boom Equipment."...