Mitchell Water Australia Pty Ltd v McConnell Dowell Constructors (Aust) Pty Ltd [2018] VSC 753

The Victorian Supreme Court recently had to resolve competing applications made under Victorian and Queensland commercial arbitration legislation.

The arbitration was conducted pursuant to the Commercial Arbitration Act 2013 (Qld) (“the Queensland Act”). The arbitral hearings took place before the Arbitrator in the County Court building in Melbourne between May and December 2016. Both parties were represented by solicitors and counsel, and both parties called lay and expert evidence. It was uncontroversial between the parties that the “arbitral seat” is Queensland and that the supervising court is the Supreme Court of Queensland; and that this position was not affected merely because the arbitration hearings took place in Melbourne (at [3]).

An award had been made against McDonnell Dowell but it had applied to set aside the Award under the Queensland Arbitration Act. Mitchell Water tried to apply for enforcement of the award under s 35 of the Victorian Arbitration Act. McDonnell Dowell then sought an adjournment of that proceeding because of its ongoing application under section 16(9) of the Qld Act.

Specifically the case involved:

  • an application by Mitchell Water Australia’s Pty Ltd to the Victorian Supreme Court under section 33(5) of the Commercial Arbitration Act 2011 (Vic) to correct an initial arbitral award between the parties (on the basis that it failed to address its claim for delay costs);
  • an application by McConnell Dowell Constructors (Aust) Pty Ltd to the Queensland Supreme Court under section 16(9) of the Commercial Arbitration Act 2013 (Qld) challenging the arbitrator’s jurisdiction to determine Mitchell Water’s claim; and
  • the arbitrator’s subsequent award in respect of Mitchell Water’s claim.

Ultimately, so that McDonnell Dowell’s ability to exercise statutory rights under both the Victorian Arbitration Acts and the Queensland Arbitration Act, Justice Croft of the Victorian Supreme Court adjourned Mitchell Water’s enforcement application.

A copy of this judgement can be found at:

ARBITRATION – Application for adjournment of application to enforce arbitral award pending resolution of applications in the court of the “arbitral seat” (Supreme Court of Queensland) – Commercial Arbitration Act 2011(Vic), ss 35 and 36 – Commercial Arbitration Act 2013 (Qld), ss 16(9), (11) and 34.