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

Supreme Court New South Wales

Medium Neutral Citation: Ku-ring-gai Council v Ichor Constructions Pty Ltd [2018] NSWSC 610 Hearing dates: 24/04/2018 Date of orders: 08 May 2018 Decision date: 08 May 2018 Jurisdiction: Equity - Commercial Arbitration List Before: McDougall J Decision: Summons dismissed with costs. Catchwords: COMMERCIAL ARBITRATION – consideration of s 27D of the Commercial Arbitration Act 2010 (NSW) – discussion of requirements for arbitrator to act as mediator – where arbitrator so acted – arbitrator's mandate terminated pursuant to s 27D(6) absent subsequent written consent of the parties – whether such consent can be inferred from the written record of the transcript – such inference of consent impermissible – consequently no written consent provided.

COMMERCIAL ARBITRATION – statutory waiver – consideration of s 4 of the Commercial Arbitration Act 2010 (NSW) – whether first defendant waived its right to insist on written consent – s 4 requires actual knowledge of the provision which is to be waived – no such knowledge in present case – no waiver established.

EQUITY – whether first defendant estopped from insisting on written consent – no evidentiary basis for either conventional estoppel or estoppel by representation – no detriment suffered by plaintiff in any event – proceedings dismissed. Legislation Cited: Commercial Arbitration Act 2010 (NSW) UNCITRAL Model Law on International Commercial Arbitration 1985 Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 Hopeshore Pty Ltd v Melroad Equipment Pty Ltd (2004) 212 ALR 66 Overmyer Industrial Brokers Pty Ltd v Campbells Cash and Carry Pty Ltd [2003] NSWCA 305 Texts Cited: Australian Oxford Dictionary Commercial Arbitration in Australia (LawBook Co, 2nd edition, 2013) Macquarie Dictionary Report of the 18th Session of the United Nations Commision on International Trade Law Category: Principal judgment Parties: Ku-ring-gai Council (Plaintiff) Ichor Constructions Pty Ltd (First Defendant) John Tyrril (Second Defendant) Representation: Counsel: Dr CJ Birch SC (Plaintiff) M A Ashhurst SC / L D Corbett (Defendants)