Grd Kirfield Ltd v First Trade Consulting Pty Ltd

[2004] WASC 158

Supreme Court of Western Australia

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For Australian Law.

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Interrogate

Catchwords

1. Arbitration
2. › Commercial arbitration
3. › Appeal from arbitral award
4. › Leave to appeal on questions of law
5. › Manifest error of law on face of award
6. › Approach to findings of lay arbitrator
7. › Commercial Arbitration Act 1985 (WA), s 38
1. Arbitration
2. › Commercial arbitration
3. › Appeal from arbitral award
4. › Questions of law
5. › Whether arbitrator's finding of enforceable agreement constituted manifest error of law
6. › Whether agreement incomplete or agreement to agree
7. › Commercial Arbitration Act 1985 (WA), s 38(5)(b)(i)
1. Contract
2. › Formation
3. › Agreement to agree
4. › Whether terms sufficiently certain to constitute enforceable agreement
5. › Material terms still to be negotiated
6. › Subcontractor deferral arrangements in building project
1. Contract
2. › Construction
3. › Entire agreement clause
4. › Whether prior oral or implied agreement inconsistent with entire agreement clause in later written contract

Quick Take

Where an arbitrator characterises material terms still to be negotiated (such as payment discharges, maintenance of contractual rights, and cash neutral positions) as merely 'procedural' or 'administrative' matters, this constitutes a manifest error of law on the face of the award. The flexible approach to reviewing lay arbitrators' awards does not extend to drawing inferences the arbitrator did not draw or rewriting the award. A deeming clause for practical completion (cl 9.10.04 JCC-D 1994) is not triggered where occupancy occurs for the mutual convenience of the parties and at the builder's request.