Ku-ring-gai Council v Ichor Constructions Pty Ltd [2019] NSWCA 2

Ku-ring-gai Council v Ichor Constructions Pty Ltd [2019] NSWCA 2

The Supreme Court's decision on whether the arbitrator's mandate had terminated was made under s 14(2) and, by operation of s 14(3), that decision is final and an appeal to the Court of Appeal is precluded. The arbitrator acted as mediator and no written consent was given to resume arbitration, so the applicant's proceedings were rightly dismissed. No waiver or estoppel arose as there was no knowledge of the requirement for consent under s 27D(4).

Parties
Applicant: Ku-ring-gai Council; Respondent: Ichor Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
05 February 2019
Procedural Posture
Application for Leave to Appeal / Application for Leave to Appeal to Court of Appeal After Dismissal of Proceedings in Equity Division of Supreme Court
Outcome
Application for leave to appeal dismissed as incompetent.
Legal Topics
Role of Court in Arbitration, Termination of Arbitrator's Mandate, Consent and Waiver Under Commercial Arbitration Act 2010 (nsw), Appealability of Decisions Under S 14(2)
Commercial Arbitration Civil Procedure Role of Court in Arbitration Termination of Arbitrator's Mandate Consent and Waiver Under Commercial Arbitration Act 2010 (nsw) Appealability of Decisions Under S 14(2)

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Parties

Ku-ring-gai Council

Applicant

Ichor Constructions Pty Ltd

Respondent

Procedural Posture

Application for Leave to Appeal / Application for Leave to Appeal to Court of Appeal After Dismissal of Proceedings in Equity Division of Supreme Court

Legal Issues

  1. 1 Did the Supreme Court's power derive from s 14(2) or s 17J of the Commercial Arbitration Act 2010 (NSW)?
  2. 2 Does s 14(3) of the Act preclude an appeal to the Court of Appeal from a decision on termination of arbitrator's mandate?
  3. 3 Was the arbitrator 'acting as a mediator' under s 27D and did parties provide necessary written consent to resume arbitration?

Ratio Decidendi

The Supreme Court's decision on whether the arbitrator's mandate had terminated was made under s 14(2) and, by operation of s 14(3), that decision is final and an appeal to the Court of Appeal is precluded. The arbitrator acted as mediator and no written consent was given to resume arbitration, so the applicant's proceedings were rightly dismissed. No waiver or estoppel arose as there was no knowledge of the requirement for consent under s 27D(4).

Court Disposition

Application for leave to appeal dismissed as incompetent.

Orders

  • Dismiss the application for leave to appeal as incompetent.
  • Order the applicant to pay the respondent's costs of the application, including the costs of the objection to competency.