Amec Australia v Pacific Power [1999] NSWSC 531

New South Wales Supreme Court CITATION : Amec Australia v Pacific Power [1999] NSWSC 531 CURRENT JURISDICTION : Equity Division Commercial List FILE NUMBER(S) : 55007/99 HEARING DATE(S) : 23.4.99 and 28.5.99 JUDGMENT DATE : 3 June 1999

PARTIES : Amec Australia Pty Ltd v Pacific Power JUDGMENT OF : Hunter J

COUNSEL : Plaintiff: Mr P Donohoe QC Defendant: Mr BW Collins QC SOLICITORS : Plaintiff: Clayton Utz Defendant: Allen Allen & Hemsley CATCHWORDS : Commercial arbitration - leave to appeal from award - manifest error of law on the face of award - strong evidence of error of law by arbitrator - determination adding to certainty of commercial law - consideration of "all the circumstances" - discretion in refusing leave - s 38 Commercial Arbitration Act 1984. ACTS CITED : Commercial Arbitration Act 1984 CASES CITED : Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 DECISION : Leave to appeal refused - summons dismissed - plaintiff to pay the defendant's costs.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

HUNTER J

THURSDAY 3 JUNE 1999

55007/99 AMEC AUSTRALIA PTY LTD v PACIFIC POWER

REASONS FOR JUDGMENT 1 This is an application by Amec Australia Pty Ltd (Amec) for leave to appeal pursuant to s 38 of the Commercial Arbitration Act 1984 (the Act) from an interim award dated 5 February 1999 (the award) of the Right Honourable Sir Ian McKay (the arbitrator) in arbitral proceedings between Amec and Pacific Power (Pacific Power) arising under a contract dated 8 March 1994 (the contract) for the design and construction by AMEC of a coal handling facility (the works) for Pacific Power. 2 The disputes under the contract arose, principally, out of a notice of 3 October 1995 by Pacific Power to Amec taking the incompleted portion of the works out of the hands of Amec. The notice was expressed to be given pursuant to clause 44.4 of the general conditions of contract which, the evidence has disclosed, was in standard form in extensive use in the construction industry, being known as General Conditions AS 2124-1986. Clause 44, so far as is relevant, is in the following terms: "44. DEFAULT OR INSOLVENCY 44.1 Preservation Of Other Rights If a party breaches or repudiates the Contract, nothing in Clause 44 shall prejudice the right of the other party to recover damages or exercise any other right. 44.2 Default by the Contractor If the Contractor commits a substantial breach of Contract and the Principal considers that damages may not be adequate remedy, the Principal may give the Contractor a written notice to show cause. Substantial breaches include but are not limited to - (a) suspension of work, in breach of Clause 33.1; (b) failing to proceed with due expedition and without delay, in breach of Clause 33.1;