Energy Brix Australia Corporation Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd

(2002) 5 VR 353; [2002] VSCA 113

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appeals
3. › Court of Appeal jurisdiction
4. › Appeal from refusal of leave to appeal from arbitrator's award
5. › Whether general right of appeal under Supreme Court Act excluded by Commercial Arbitration Act
6. › Whether 'otherwise expressly provided'
7. › Supreme Court Act 1986 (Vic), s 17(2)
8. › Commercial Arbitration Act 1984 (Vic), s 38
1. Arbitration
2. › Commercial arbitration
3. › Judicial review of awards
4. › Leave to appeal on question of law
5. › Manifest error of law on face of award
6. › Whether arbitrator erred in holding contract under seal has precedence over later informal agreement
7. › Commercial Arbitration Act 1984 (Vic), s 38(4), (5)(b)(i)
1. Contract
2. › Variation and discharge
3. › Contract under seal
4. › Whether contract under seal may be varied or discharged by later simple contract for consideration
5. › Absence of rule that contract under seal has 'precedence' over later signed agreement not under seal

Quick Take

The Court of Appeal has jurisdiction under s.17(2) of the Supreme Court Act 1986 (Vic) to hear appeals from Trial Division decisions granting or refusing leave to appeal from arbitral awards under s.38 of the Commercial Arbitration Act 1984 (Vic). The repeal in 1993 of the former sub-ss.(6) and (7) of s.38 did not remove this right but rather restored it in unimpaired form. There is no rule of law that a contract under seal has 'precedence' over a later informal agreement supported by consideration; an arbitrator who proceeds on that basis commits a manifest error of law on the face of the award.