BARROB PTY LTD (IN LIQUIDATION) V OV PETERS PTY LTD (1992) BC9301177
WA Supreme Court – 19 January 1993
This was an application by the defendant to stay proceedings in proceedings commenced by the plaintiff. The application was made pursuant to section 53 of the Commercial Arbitration Act 1985 (WA).
The plaintiff had agreed to carry out civil works for the defendants and the relevant contract was AS2124-1986. A dispute arose and various breaches of contract were alleged by both parties. Clause 46 of the contract provided for disputes between the parties to be referred to the superintendent and then provided for arbitration when one party was dissatisfied with the decision of the superintendent.
The plaintiff alleged that the superintendent had failed to comply with the requirement to resolve the dispute by arbitration.
The plaintiff opposed the application for a stay on the basis that there was no valid arbitration agreement for the purpose of the Act between the parties.
The court had to decide whether the dispute resolution clause in AS2124-1986 giving a dissatisfied party a right to elect to proceed to arbitration was a valid arbitration agreement within the meaning of section 53 of the Act.