FPM CONSTRUCTIONS PTY LIMITED & Anor v AUSTRALIAN RECREATION SYSTEMS PTY LTD & Anor [2004] NSWCA 318

FPM CONSTRUCTIONS PTY LIMITED & Anor v AUSTRALIAN RECREATION SYSTEMS PTY LTD & Anor [2004] NSWCA 318

None of the stated bases in the 28 May 2003 termination letter constituted a reasonable ground for concluding it was not in the interests of ARS or Nicholas for the arbitration to continue; therefore, the power to terminate arbitration under clause 7 of the Deed was not properly invoked and the attempted termination...

Source-derived case information.

Parties
Appellant: FPM Constructions Pty Limited (formerly Fyntray Project Management Pty Ltd); Appellant: Anwar Yazbek; Respondent: Australian Recreation Systems Pty Limited; Respondent: John Nicholas
Jurisdiction
Australia
Judgment Date
16 September 2004
Procedural Posture
Civil Appeal / Appeal From Supreme Court of NSW Equity Division
Outcome
Appeal allowed
Legal Topics
Construction of Deed, Arbitration, Termination Rights, Indemnity, Construction Contract, Costs
Contract Law Commercial Law Construction of Deed Arbitration Termination Rights Indemnity Construction Contract Costs

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Parties

FPM Constructions Pty Limited (formerly Fyntray Project Management Pty Ltd)

Appellant

Anwar Yazbek

Appellant

Australian Recreation Systems Pty Limited

Respondent

John Nicholas

Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court of NSW Equity Division

Legal Issues

  1. 1 Proper construction of clause 7 of the Deed dated 23 January 2003 regarding the right to terminate arbitration
  2. 2 Whether ARS and Mr Nicholas were entitled to terminate arbitration under clause 7 without liability to the appellants
  3. 3 Whether reasonable grounds existed for the termination decision by Mr Nicholas and his solicitor

Ratio Decidendi

None of the stated bases in the 28 May 2003 termination letter constituted a reasonable ground for concluding it was not in the interests of ARS or Nicholas for the arbitration to continue; therefore, the power to terminate arbitration under clause 7 of the Deed was not properly invoked and the attempted termination was invalid.

Court Disposition

Appeal allowed

Orders

  • Set aside the declaration made by Campbell J on 21 August 2003.
  • Set aside the order for costs made by Campbell J on 1 October 2003.