Doran v Beresfield [2001] NSWSC 49

New South Wales Supreme Court

CITATION : Doran v Beresfield [2001] NSWSC 49 revised - 13/02/2001 CURRENT JURISDICTION: Equity Division Construction List FILE NUMBER(S) : SC 55003/99 HEARING DATE(S) : 07/02/01,08/02/01 JUDGMENT DATE : 8 February 2001

PARTIES : Doran Construction Pty Ltd (in liquidation) (Receiver and Manager Appointed) - Plaintiff Beresfield Aluminium Pty Ltd - Defendant JUDGMENT OF : Brownie AJ

COUNSEL : Mr A.S. Martin SC - Plaintiff Mr M.A. Pembroke SC & Mr S. Goldstein SOLICITORS : Doyles Construction Lawyers - Plaintiff Hills Solicitors - Defendant CATCHWORDS : Arbitratiion- appeal from award- date from which time for appealing runs- SCR P.72A R5 construed. - Otherwise, no question of principle. Technical Team Projects Pty Ltd v Noble Dunn pty Ltd (1990) 20 NSWLR 221 at 231 CASES CITED : Doran Constructions Pty Ltd v Health Administration Corporation of New South Wales (194) 12 BCL 59 Lewis v Cook (2000) NSWSC 191 DECISION : Dismiss the motion with costs. Stoodover to 23/02/01 in the Directions List.

- 1 - THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BROWNIE AJ

THURSDAY 8 FEBRUARY 2001

55003/99 - DORAN CONSTRUCTIONS PTY LTD (IN LIQUIDATION) (RECEIVER & MANAGER APPOINTED) v BERESFIELD ALUMINIUM PTY LTD

JUDGMENT

1 Pursuant to provisions of Part 31 Rule 2 I order that there be decided separately from any other questions in the case and before all the other questions of the case the question whether in the circumstances of this case the time fixed by Part 72A Rule 5 within which the plaintiff might bring proceedings under sections 38(4) and 42 of the Commercial Arbitration Act 1984 has yet commenced to run. 2 By notice of motion dated 27 April 1999 the plaintiff seeks an order that to the extent necessary it be granted an extension of time to lodge an appeal from two awards, one called an interim award and the other a final award, made in arbitration proceedings between the plaintiff and the defendant. I will deal first with the separate question that I just mentioned. 3 The plaintiff contracted to do certain building work. It then entered into a further contract with the defendant as subcontractor to the general effect that the defendant carried out some of work which the plaintiff had contracted to do. The subcontract contained an arbitration clause but in the event the parties supplemented that with a further arbitration agreement and eventually proceeded to arbitration. 4 After a lengthy hearing, but before publishing an award, the arbitrator wrote to the two firms of solicitors representing the plaintiff and the defendant on 12 December 1997. He referred to an earlier agreement to the effect that the parties be jointly liable for the costs of the arbitration, listed the amounts which had been paid by the plaintiff and the defendant respectively on account of those costs, noting that the defendant had paid $5,000 more than the plaintiff had paid at that stage. He asked the plaintiff to pay a further $10,000 into a trust account administered by the Masters Builders Association and asked the defendant to pay a further $5,000 into that account and he said, "My award should be complete around the middle of January 1998". 5 On 24 December 1997 the defendant went into liquidation. Mr Lewis was appointed as liquidator. On 15 January 1998, apparently unaware of the fact of the liquidation, the arbitrator wrote to the solicitors acting for the plaintiff and the defendant in these terms, "My interim award has now been handed down. This award is held by the Master Builders Association. This award will not be handed to your company until you deposit [the sum] outstanding as per my previous correspondence". 6 The defendant paid the $5,000 requested of it and took delivery of a copy of the interim award, that is the award which dealt with all questions except the costs of the arbitration. It contained a statement of reasons. 7 The plaintiff has never paid the $10,000 requested of it and did not receive a copy of the interim award until December 1998. 8 The final award related only to the costs of the arbitration. The plaintiff received a copy of it rather earlier. The two awards which it received were received by it from someone other than the arbitrator. 9 The plaintiff was a subsidiary of Doran Constructions (Australia) Pty Ltd. It seems that both companies were ultimately controlled by Doran Holdings Pty Ltd and that all three companies were controlled by four persons named Doran , described as brothers. At some time not established by the evidence the Doran brothers wished to bring proceedings under sections 38(4) and 42 of the Commercial Arbitration Act 1984 so as to upset the awards. I will adopt the shorthand mechanism of describing these applications indiscriminately as "appealing". 10 Part 72 A Rule 5 fixes the time within which such an appeal should be brought. It is to be brought within 28 days of the "material date". 11 Subrule (1) provides, "In this rule material date means: (a) in respect of an award which by agreement by the parties to the arbitration agreement may be made with reasons later - the date on which notice of the reasons is given by the arbitrator to the person who wishes to reply or appeal to the Court;