EDEN CONSTRUCTION PTY LTD v SNOWY RIVER SHIRE COUNCIL [2004] NSWSC 886

New South Wales Supreme Court

CITATION : EDEN CONSTRUCTION PTY LTD v SNOWY RIVER SHIRE COUNCIL [2004] NSWSC 886 HEARING DATE(S) : 20, 21 September 2004 JUDGMENT DATE : 21 September 2004 JURISDICTION: Commercial List JUDGMENT OF : Bergin J DECISION : Leave to appeal refused

CATCHWORDS : [COMMERCIAL ARBITRATION] Application for leave to appeal from an Arbitrator's Award pursuant to s.38 of the Commercial Arbitration Act 1984 (NSW) - Whether manifest error on face of Award LEGISLATION CITED : Commercial Arbitration Act 1984 (NSW) Natoli v Walker NSWCA 26 May 1994 CASES CITED : Promenade Investments v The State of New South Wales (1992) 26 NSWLR 203 State of New South Wales v Coya (Constructions) Pty Ltd NSWCA 4 August 1995 PARTIES : Eden Construction Pty Ltd (Plaintiff) Snowy River Shire Council (Defendant) FILE NUMBER(S) : SC 50007/04 COUNSEL : Mr T. Bland (Plaintiff) Mr P.W. Gray SC (Defendant) SOLICITORS : Johninfo Lawyers (Plaintiff) Minter Ellison (Defendant)

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

BERGIN J

21 September 2004

50007/04 - EDEN CONSTRUCTION PTY LTD v SNOWY RIVER SHIRE COUNCIL JUDGMENT

1 This is an application brought by the plaintiff, Eden Construction Pty Ltd, for leave to appeal pursuant to s 38 of the Commercial Arbitration Act 1984 (NSW) from the award of an Arbitrator, Bryan Ahern, of 22 October 2003, entitled "Interim Award" in relation to a dispute between the plaintiff and the defendant, Snowy River Shire Council, concerning construction works on a Water Supply Reservoir at Eucumbene Cove, New South Wales. 2 The parties were required to file evidence and an outline of submissions prior to the commencement of this hearing however the case changed quite drastically on the first day of the trial. The trial commenced on Monday 20 September 2004 when Mr T Bland of counsel appeared for the plaintiff and Mr PW Gray SC appeared for the defendant, Snowy River Shire Council. 3 The contract between the plaintiff and the defendant for the construction of the Water Supply Reservoir at Eucumbene Cove contained an arbitration agreement and when disputes arose between the parties, including the defendant taking the works out of the hands of the plaintiff, such disputes were referred to arbitration before Mr Ahern. An arbitration hearing took place on 30 and 31 July 2003. Mr Ahern delivered the Interim Award on 22 October 2003 and a Final Award in respect of costs of the arbitration and the legal costs of the defendant was delivered on 2 November 2003. 4 The Interim Award refers to the history of the disputation and the conduct of the arbitration. Under the heading "The Issues" on page 7 the Arbitrator referred to one major issue and three minor issues. The major issue was identified as the question of whether the plaintiff had achieved Practical Completion and whether the work was validly taken out of the plaintiff's hands. The minor issues were whether the plaintiff's claims for release of the charge taken over its plant, for delay costs in possession of the site, and for costs of pumping water were made out.