In a decision of Chief Justice Wayne Martin of the Supreme Court
of Western Australia published 30 September 2014, 2 applications by
the tenant of a substantial retail shop seeking leave to appeal the
award of an arbitrator of a retail shop lease dispute were
dismissed. Mark Fatharly of Kott Gunning appeared as counsel for
the defendant landlord successful in both the arbitration and the
Supreme Court hearing.
The citation for the decision is Solid Gold Jewellers Pty
Ltd v Winston Holdings Pty Ltd  WASC 361.
By way of background, the landlord leased newly renovated
premises to the tenant in Perth, the lease containing an
arbitration clause. One aspect of dispute the subject of the
applications for leave had arisen from findings of the arbitrator
about the standard of fire sprinkler system which the landlord had
been required to install in the context of the lease terms and the
fact that the premises were intended to be used for retail
The tenant's applications for leave to appeal were on the
Seeking leave to appeal under s38 of the Act on the basis of
alleged manifest error of law on the face of the arbitrator's
award; and separately
Seeking leave, out of time, to amend the notice of appeal so as
to assert that the award delivered by the arbitrator should be set
aside under s42 of the Act for misconduct due to failure to comply
with rules of natural justice. This was due to the arbitrator
making findings that the tenant bore the onus of proof to establish
that there had been a breach of a clause of the lease by the
landlord, yet the tenant alleged it was taken by surprise that such
a finding may have been made.
The arbitration and appeal were made under the Commercial
Arbitration Act 1985 (WA) which was applicable at the
commencement of the arbitration. While procedurally the
tenant's applications were irregular and the matter proceeded
on the substance of the application, the Chief Justice determined
that there did not appear to be any arguable basis for the
contentions made by the tenant and dismissed both applications on
the day of the hearing.
While the outcome in this case was a very clear victory for the
landlord from a legal perspective, certainly lessons need to be
taken from it:
With any dispute, by way of arbitration, court process or
otherwise, there is usually a drawn out process which is costly and
potentially damaging to relationships, particularly where there are
ongoing long term relationships such as a lease;
While an arbitration process may be less formal and usually
confidential, it remains subject to appeal and publication of
decisions of the Court;
Commercially, the parties must be mindful of the fact that the
value of the dispute must be one of such significance to make the
expense of the processes, including the payment of the
arbitrator's fees and the risk of costs awards and orders,
While each party may be represented by experienced solicitors
and counsel, the approach to interpretation of the situation the
parties are in, including interpretation of the contractual
arrangements between them, can be so different that it is often
necessary to have the matter determined by an arbitrator or Judge
as the parties' positions can quickly become entrenched.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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