Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610

Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610

The Arbitrator acted as mediator; after mediation terminated, the parties did not provide written consent allowing the Arbitrator to continue the arbitration as required by s 27D(4); inferred or presumed consent based on transcript or conduct is insufficient to fulfil the statutory requirement; neither waiver under s 4 nor estoppel applies due to lack of actual knowledge and no representation or detriment; therefore, the Council’s claim fails and proceedings are dismissed.

Jurisdiction
Australia
Judgment Date
08 May 2018
Procedural Posture
Commercial Arbitration Related Dispute / Principal Judgment; Final Orders on Summons
Outcome
Summons dismissed with costs.
Legal Topics
['mediator/arbitrator Role' 'statutory Waiver' 'written Consent' 'estoppel in Arbitration']
['arbitration' 'equity'] ['mediator/arbitrator Role' 'statutory Waiver' 'written Consent' 'estoppel in Arbitration']

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Procedural Posture

Commercial Arbitration Related Dispute / Principal Judgment; Final Orders on Summons

Legal Issues

  1. 1 ['Did the arbitrator act as mediator so as to engage s 27D of the Commercial Arbitration Act 2010 (NSW)?' 'Did the parties give their written consents for the arbitrator to resume the arbitration after mediation terminated, as required by s 27D(4)?' "Did Ichor waive its right to object to the arbitrator's resumption absent written consent (statutory waiver under s 4)?" 'Is Ichor estopped from insisting on written consent (conventional estoppel or estoppel by representation)?']

Ratio Decidendi

The Arbitrator acted as mediator; after mediation terminated, the parties did not provide written consent allowing the Arbitrator to continue the arbitration as required by s 27D(4); inferred or presumed consent based on transcript or conduct is insufficient to fulfil the statutory requirement; neither waiver under s 4 nor estoppel applies due to lack of actual knowledge and no representation or detriment; therefore, the Council’s claim fails and proceedings are dismissed.

Court Disposition

Summons dismissed with costs.

Orders

  • ['Order that the proceedings be dismissed.' "Order the plaintiff to pay the first defendant's costs." 'Otherwise, make no order as to costs.' 'Direct that the exhibits be handed out.']