Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd & Ors [1987] FCA 64

Bond Corporation Pty Ltd v. Thiess Contractors Pty Ltd & Ors [1987] FCA 64

The application by the first respondent for a stay of proceedings under s.53 of the Commercial Arbitration Act 1985 (WA) (as picked up by s.79 of the Judiciary Act 1903) is refused because there would be a multiplicity of overlapping proceedings between the parties, a risk of inconsistent findings, and all disputes (including those arising under the Trade Practices Act 1974) may be resolved more efficiently in the Federal Court in a single forum. An order is granted restraining the first respondent from prosecuting the arbitration pending further order. The respondent's summary dismissal/abuse of process application is refused, as the claims are not plainly unsustainable or brought for an...

Parties
Applicant: Bond Corporation Pty Limited; First Respondent: Thiess Contractors Pty Ltd; Second Respondents: Ove Arup Pty Ltd, Arup Partners Pty Ltd and Ove Arup Consult Pty Ltd
Jurisdiction
Australia
Judgment Date
24 February 1987
Procedural Posture
Application (motions/interlocutory) in Construction/engineering Dispute / Stay of Proceedings, Injunction, and Summary Dismissal Applications
Outcome
Applicant's motion granted; first respondent's motion dismissed.
Legal Topics
Stay of Proceedings Pending Arbitration, Injunctions Restraining Arbitral Proceedings, Misleading and Deceptive Conduct, Summary Dismissal, Construction Contracts, Breach of Contract, Negligence, Abuse of Process
Commercial Law Arbitration Contracts Torts Trade Practices Stay of Proceedings Pending Arbitration Injunctions Restraining Arbitral Proceedings Misleading and Deceptive Conduct +5 more

Case Brief

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Parties

Bond Corporation Pty Limited

Applicant

Thiess Contractors Pty Ltd

First Respondent

Ove Arup Pty Ltd, Arup Partners Pty Ltd and Ove Arup Consult Pty Ltd

Second Respondents

Procedural Posture

Application (motions/interlocutory) in Construction/engineering Dispute / Stay of Proceedings, Injunction, and Summary Dismissal Applications

Legal Issues

  1. 1 Whether proceedings should be stayed under s.86 Trade Practices Act 1974 and s.53 Commercial Arbitration Act 1985 (WA) pending arbitration
  2. 2 Whether to restrain first respondent from prosecuting an arbitration
  3. 3 Whether action discloses reasonable cause of action or is an abuse of process or is frivolous or vexatious

Ratio Decidendi

The application by the first respondent for a stay of proceedings under s.53 of the Commercial Arbitration Act 1985 (WA) (as picked up by s.79 of the Judiciary Act 1903) is refused because there would be a multiplicity of overlapping proceedings between the parties, a risk of inconsistent findings, and all disputes (including those arising under the Trade Practices Act 1974) may be resolved more efficiently in the Federal Court in a single forum. An order is granted restraining the first respondent from prosecuting the arbitration pending further order. The respondent's summary dismissal/abuse of process application is refused, as the claims are not plainly unsustainable or brought for an...

Court Disposition

Applicant's motion granted; first respondent's motion dismissed.

Orders

  • The First Respondent, its servants or agents, be restrained until further order from prosecuting an arbitration between the First Respondent and the Applicant in accordance with the Notice of Reference to Arbitration served by the First Respondent on 12 September 1986.
  • First Respondent granted liberty to apply to vary or set aside this order on 48 hours written notice.