Mi v Li [2017] ACTSC 54

ARBITRATION - COMMERCIAL ARBITRATION - Judicial Review - conduct of arbitration proceedings - application to remove arbitrator from proceedings - arbitrator misconduct - arbitration or award improperly procured - manifest error of law on the face of the award

Building Act 2004 (ACT)

Commercial Arbitration Act 1986 (ACT)

Court Procedures Rules 2006 (ACT)

Adapt Construction Pty Ltd v Whitaker [2015] ACTSC 188

Chan v Wood & Kai Design Pty Ltd [2013] ACTSC 228

Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662

Galea v Galea (1990) 19 NSWLR 263

Gas & Fuel Corp (Vic) v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 395

Holland Stolte Pty Ltd v Murbay Pty Ltd (1991) 105 FLR 304

Kai Design & Construction Pty Ltd v Mi [2016] ACTSC 269

Stannard v Spurway Constructions Pty Ltd [1990] VicRp 57; [1990] VR 673

Sugar Australia Pty Ltd v Mackay Sugar Ltd [2012] QSC 38

Westport Insurance v Gordian Runoff [2011] HCA 37; (2011) 244 CLR 239

Sharkey and Dorter_, Commercial Arbitration_ (Law Book Company, 1986)

1. These proceedings were commenced by originating application dated 23 August 2016. The proceedings seek to challenge an interim award made by an arbitrator, the second defendant, in an arbitration between the first defendant and the plaintiff. The arbitration is identified as IAMA Arbitration - 5073. An interim award dated 20 August 2016 (the award) determined the substantive matters in dispute between the parties. It was anticipated that a final award would deal with questions of costs. However the arbitration proceedings have been stayed by consent pending the determination of the current proceedings.

2. By his amended originating application (AOA) the plaintiff seeks orders to the following effect:

(a) that the interim award be set aside under s 42 of the Commercial Arbitration Act 1986 (CA Act);

(b) alternatively, that leave to appeal be granted under s 38 of the CA Act;

(c) that any applications in relation to the enforcement of the interim award be stayed;

(d) that the second defendant, the arbitrator, be removed from the arbitration;

(e) that the arbitration proceedings be terminated and the dispute removed into the court and costs and incidental matters be dealt with by the court.

3. The AOA identifies that the grounds of the application are:

1. There has been misconduct on the part of the arbitrator for [the arbitration]

2. The arbitrator has misconduct of the proceedings.

3. The arbitration or award has been improperly procured

4. There is manifest error of law on the face of the award

5. Strong evidence that the arbitrator made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.

6. Evidence and submission outlined in Plaintiffs outline of Submission dated 14 November 2016

4. The grounds for the application seek to invoke the operation of ss 38, 42 and 44 of the CA Act. Section 38 excludes any power of the court to set aside or remit an award on the ground of error of fact or law on the face of the award except in the limited circumstances provided in s 38(4). Relevantly that permits an appeal by leave of the court. Leave may only be granted where the court considers that

(a) having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of 1 or more parties to the arbitration agreement; and

(b) there is -

(i) a manifest error of law on the face of the award; or

(ii) strong evidence that the arbitrator or umpire made an error of law and that the determination of the question may add, or may be likely to add, substantially to the certainty of commercial law.

5. Section 42 permits the court to "set the award aside either wholly or in part" where "there has been misconduct on the part of an arbitrator ... or an arbitrator ... has misconducted the proceedings".

6. Section 44 permits the removal of an arbitrator where, relevantly, "there has been misconduct on the part of an arbitrator or umpire or an arbitrator or umpire has misconducted the proceedings".

misconduct includes corruption, fraud, partiality, bias and a breach of the rules of natural justice.

8. The award was made on 20 August 2016. The amount payable by Mr Mi to Mr Li pursuant to the award was $205,121.75. The reasons for the award extended over some 80 pages. The background to the arbitration is set out at the commencement of the interim award. It can be summarised as follows:

(a) On 10 November 2011 Mr Li and Mr Mi entered into a contract for the construction of a residential dwelling at a block in Franklin. The contract price was $500,000.

(b) Mr Li and Mr Mi entered into an arbitration agreement under the Franklin contract. The claimant in that arbitration was Kai Design and Construction Pty Ltd (the Company) which is a company controlled by Mr Li. A further arbitration agreement was entered into on 25 September 2014 which included the company, Mr Li and Mr Mi.

(c) Construction of the residence ceased before it was complete. Mr Mi contended that he terminated the contract. Mr Li contended that the contract was repudiated by Mr Mi. Mr Mi took over the work in early April 2013 and completed the work that would have been required under the contract.

(d) Mr Li initially claimed damages and in the alternative made a quantum meruit claim. In final submissions he elected to pursue the quantum meruit claim and not the claim for damages.

(e) Mr Mi made a counter claim in which he claimed rectification and completion costs as well as other components of damages.

(f) The arbitration involved 13 days of hearing.

9. The issues that the arbitrator identified he was required to answer are set out in the award. He identified (at [C3]) 13 issues which he addressed sequentially in his reasons. In summary, the central issues that arose for his determination were:

(a) Had Mr Li assigned his contractual obligations to the Company?

(b) Did the contract require that the installation of windows and glass doors would be part of the Frame and Truss Stage identified in the contract or had there been some statement or agreement that they would be, so as to give rise to an estoppel?

(c) Was Mr Mi's termination of the contract on 21 March 2013 valid?

(d) Did Mr Li have a right to terminate the contract arising from the failure by Mr Mi to pay a stage payment under the contract?

(e) What was the appropriate award of damages or upon a quantum meruit claim?

10. Having identified the issues the arbitrator made reference to the evidence that was given. He considered the question of whether or not Mr Li's contractual obligations had been assigned. The arbitrator concluded (at [E24]) that Mr Li was and remained at all material times the builder under the contract. He also rejected the contention that there was some estoppel preventing the denial of the assignment of the contract (at [E31]).

11. Next he dealt with the issues relating to the Frame and Truss Stage. This was one of the contractual stages which permitted a claim for payment under the contract to be made. This was a significant issue because what was required to be completed for the purposes of the Frame and Truss Stage would be one of the matters relevant to determining whether or not Mr Mi had validly terminated the contract. Having undertaken a detailed examination of the evidence, the arbitrator concluded that under the contract the Frame and Truss Stage did not include a requirement to have installed windows and glass doors ([F9], [F13]) and no agreement had been made between Mr Li and Mr Mi that the installation of the windows and glass doors was part of the Frame and Truss Stage ([F11], [F13]).

12. He then turned to consider in some detail the validity of Mr Mi's termination of the contract on 21 March 2013 ([H1]-[H64]). Under the contract whether the owner was entitled to terminate the contract depended upon whether or not there had been defaults by the builder and whether or not they were capable of remedy. The arbitrator considered, as best he could understand them, the matters that were raised in the termination letter. He concluded (at [H33]):

Having considered Mr Mi's Franklin Termination Letter carefully, the requirements of clause 26, the grounds Mr Mi gave for terminating the Franklin Contract and other facts and circumstances prior to the letter, Mr Mi's Franklin Termination Letter and the grounds relied upon by Mr Mi for terminating does not support a right to or effect termination pursuant to the Franklin Contract by Mr Mi.

13. He went on to consider whether Mr Mi had any other grounds for terminating the contract. His conclusion was that Mr Mi had not established that Mr Li had repudiated the contract or breached a fundamental term of it: [H35], [H63]. Further, he said that Mr Li's conduct did not demonstrate a repudiation of the contract. On the other hand he found that the insistence of Mr Mi that windows and sliding doors be installed before payment was made for the Frame and Truss Stage would lead a reasonable person to infer that Mr Mi would only make the progress payment on terms inconsistent with the provisions of the contract. Similarly his termination letter announced his intention to no longer be bound by the contract as did his taking possession of the works on 10 April 2013. He found that Mr Li did not affirm the contract following Mr Mi's repudiation. He therefore concluded (at [H64]) that the contract came to an end on 10 April 2013 when Mr Mi repudiated it.

14. In the light of this conclusion he found (at [K2]) that Mr Mi was not entitled to damages except those which had arisen prior to the termination. Those include an amount assessed at $6,630.85 for fees paid to obtain building approval where, under the contract, those fees were required to be paid by the builder: [P1].

15. He assessed Mr Li's entitlement upon a quantum meruit. In doing so he relied upon the expert evidence in the report of Mr Shepheard who estimated the total construction costs of the works up until the point of termination. However, he adjusted the figure identified by Mr Shepheard based upon Mr Schick's evidence by reducing the amount by $9,500. The net amount of Mr Li's entitlement based upon a quantum meruit was, in summary, calculated as follows:

Amount to be deducted for incomplete work or defective work

Total value of work completed at April 2013 including GST

16. He then deducted the amount of $50,000 including GST for payments already made which brought the total award to $177,713.

17. He also calculated interest on that amount as $34,681.70. He set off against the amount owed to Mr Li the amount owed to Mr Mi for fees payable to authorities of $6,630.85 plus interest of $642.10. The result was an award in favour of Mr Li of $205,121.75.

18. The submissions of the plaintiff in support of his claim for relief were organised into three groups of allegations:

(a) the allegation that the arbitration had been improperly procured or the award had been improperly procured (s 42(1)(b));

(b) the allegation that the arbitrator had misconducted had the proceedings or had misconducted himself (s 42(1)(a));

(c) the allegation that there was a manifest error of law on the face of the award (s 38(5)(b)(i)).

19. I will address the claim by reference to these issues.

Was the arbitration or interim award improperly procured?

20. The submissions of the parties did not articulate what was required to demonstrate that an award was "improperly procured". Sharkey and Dorter Commercial Arbitration (Law Book Company, 1986) at 278 say, in relation to the distinction between misconduct and improper procurement:

The distinction between misconduct on the one hand and improper procurement on the other has never been clearly marked. Indeed, it is difficult to see how an award could have been improperly procured without their having been some misconduct on the part of the arbitrator sufficient to warrant the award being set aside. It may be however that misconduct looks to the behaviour of the arbitrator during the course of the proceedings whereas the improper procurement is more concerned with the conduct of the parties.

21. The matters raised by Mr Mi were consistent with such a distinction, being focused on the conduct of Mr Li and his representatives. The matters raised by Mr Mi in relation to this issue are as follows:

(a) The solicitor for Mr Li and the barrister for Mr Li answered "the most important question of the entire Arbitration" during the cross examination of Mr Li by counsel for Mr Mi, and the arbitrator was misled by this "false oral evidence".

(b) Material evidence was fraudulently concealed by the defendant.

(c) The arbitrator was deceived by Mr Li's "fraudulent statements that Mr Li did not know the Comtal Plan was substituted by the Approved Plan for the Franklin contract and Mr Mi took over [the] building approval process."

(d) The arbitrator was deceived by Mr Li's "fraudulent answer" that Mr Mi took over the window order during the building approval process.

22. I will address each of these areas of submissions below.

23. Solicitor and barrister answering a question put to a witness: This arose out of an incident that occurred during the course of the cross examination of Mr Li by counsel for Mr Mi. The following appears in the transcript:

Can you tell me what 1A relates to?---1A is a sliding door to the balcony. 1B is the window to the kitchen.

And they are part of the frames and trusses work, yes?---No.

Mr Vivekenanda: No?---No, sorry.

Mr Pattenden: I had an answer given then by my friends and I take great- - -

Mr Vivekananda: We apologise?---So in the building industry, frame and truss is necessary for the window but lock-up, yes.

Mr Pattenden: However, frames and trusses can include windows, can't it, in the building industry?---It is better to do it at the same time but unnecessary, frame which is a fame [sic], truss which is a truss. Window is a window.

Yes, and you- - -?---Windows are not supporting - like there's no structure on the window, so- - -

A window has to be nailed into the frame?---Just nail into frame, make it easier to do it at the same time, yes.

24. The arbitrator addressed the issue in his reasons at [F8] as follows:

Mr Li was unmoved in relation to whether that Frame and Truss Stage included [windows]. It was put to Mr Li in cross examination that a window and a sliding door on a photograph marked by Mr Li at the request of the Respondent's Counsel were part of the Frame and Truss Stage. Mr Li was clear in his answer that they were not. Although it was submitted that the answer had been given by the solicitor for the Claimant it is my recollection of the evidence that the answer "No" was first given by Mr Li and then affirmed by the Claimant's Counsel. It may not have been correct for the Claimant's Counsel to have affirmed and added to the answer but the answer by Mr Li is sufficient to meet the proposition that was put to Mr Li that the 2 items he marked were part of the Frame and Truss Stage.

25. Mr Mi's submission suggested that Ms White, the solicitor for Mr Li had, prior to Mr Li's answer said "No!". That is certainly consistent with what can be heard on the audio of the arbitration which was tendered in these proceedings.

26. In his submissions Mr Mi also identified a number of different pieces of evidence which supported his contention that the windows were a requirement of the Frame and Truss Stage under the contract.

27. I am not satisfied that the interjection by Mr Vivekananda and Ms White during the course of Mr Li's evidence had any causal effect upon the findings by the arbitrator. He had earlier (at [D2](a)) indicated that he would place limited reliance upon what he perceived to be self-serving evidence given by both Mr Mi and Mr Li. He considered the issue of what was required to be included in the Frame and Truss Stage at considerable length at [F1]-[F17].

28. It is clear having regard to his reasons (at [F8]) that the arbitrator specifically considered the submission made by counsel for Mr Mi concerning the manner in which the answers were given The arbitrator's recollection corresponds with what appears in the transcript. I am not satisfied that the arbitrator was in any way misled by what occurred. Plainly it was unfortunate that Mr Vivekananda or Ms White said anything while Mr Li was under cross-examination. However Mr Vivekananda apologised and I am not satisfied that the arbitrator failed to properly have regard to the circumstances in which Mr Li's evidence was given when reaching his conclusion as to the proper interpretation of the contract or any estoppel arising in relation to its operation.

29. Material evidence fraudulently concealed: Mr Mi made a number of submissions in relation to what he contended was "material evidence" that was "fraudulently concealed" by the defendant.

30. First, he submitted that the plaintiff had given a notice to produce to the defendant on 13 February 2015. He submitted that the defendant refused to produce any documents listed in paragraphs 1-7 of the notice. Item 7 in the notice included "Contract, plans, inclusion list and commencement notice for all construction projects presented in the Warbucks report." The reference to the Warbucks report was a reference to a report of Ms Sandra Clutterbuck, an accountant. Mr Mi submitted that the failure to produce these documents was contrary to rule 6748 of the Court Procedures Rules 2006.

31. Rule 6748 relates to the giving of notices to produce in court proceedings. It has no direct application to the arbitration. The submissions of the parties did not direct me to where, if at all, any issue in relation to Mr Mi's notice to produce was dealt with in the transcript. However it is clear that little or no weight was given to Ms Clutterbuck's evidence. At [D2](b) the arbitrator described her evidence as follows:

Ms Sandra Clutterbuck gave evidence in respect of a profit calculation performed by her based on selected documents provided to her. Ms Clutterbuck was not relied on as an expert witness and the calculation did not assist as the basis on which the documents were selected was not disclosed. Also, the absence from the evidence of the relevant contracts addressed by Ms Clutterbuck further lessened the weight that could be given to Ms Clutterbuck's evidence.

32. When addressing what profit component should be incorporated in the calculations for the purposes of the quantum meruit claim the arbitrator said:

The evidence of Ms Clutterbuck (Exhibit C37) did not assist, partly because it was not given as an expert opinion but as a summary of the margins taken from selected documents for selected properties only. It did no more than provide a calculation on some untested bases.

33. In making his award the arbitrator relied instead upon the calculations of Mr Shepheard for the purposes of arriving at an assessment of reasonable remuneration. In those circumstances I am not satisfied that any failure to comply with a notice given by Mr Mi demonstrates that the award was improperly procured for the purposes of s 42 of the CA Act.

34. Second, Mr Mi submitted that Mr Li possessed an Appointment of Builder & Application for Commencement Notice form signed on 11 September 2012 and a Building Commencement Notice dated 19 September 2012. Although these documents had been provided to Mr Mi prior to the arbitration, he submitted that Mr Li's counsel argued that the documents were not authentic and refused to provide the document from Mr Li's records. The submissions referred to a portion of the transcript dealing with an objection to the admissibility of the two documents on the ground that their authenticity had not been established because they differed from the document that was to be found on the departmental building file. The parties did not direct me to any portion of the transcript addressing any further attempt to establish the authenticity of the documents or have the documents admitted into evidence. My conclusions are as follows:

(a) There was no evidence in these proceedings that Mr Li did possess the documents referred to by Mr Mi. There was no explanation of the significance of the documents. There was no evidence as to why, if the documents were of significance, their production was not pursued at the hearing.

(b) The exhibits that were admitted into evidence before the arbitrator were not in evidence as such in these proceedings and hence it is not possible to assess the significance of the non-admission of the documents referred to.

(c) I am not satisfied that this ground provides a basis for a conclusion that the award was improperly procured.

35. Third, the plaintiff referred to an objection made on 21 May 2015 to the admission of the Appointment of Builder & Application for Commencement Notice form signed by Mr Mi on 16 April 2013. He then referred to Mr Li's Reply in the arbitration and contended that the purpose of the Reply was to conceal the true evidence and cause harm to the plaintiff. Having regard to the fact that the Reply was a pleading document I am not satisfied that any errors in the Reply amount to the improper procurement of the award.

36. Fourth, Mr Mi says that Mr Li did not call any witnesses to give oral or written evidence. I take this to mean that he did not call any witnesses other than himself. Mr Mi submitted: "How could a claim be survived without providing any evidence but three biased expert reports?". The manner in which the arbitrator dealt with the unsatisfactory evidence given by Mr Mi and Mr Li was set out at [D2](a) of the award. The arbitrator dealt with the evidence before him and not the evidence that was not. There is no reason why Mr Li could not succeed in the arbitration because he was the only lay witness that he called to give evidence. I am not satisfied that the fact that Mr Li was the only lay witness called in his case indicates or supports the contention that the award was improperly procured.

37. Fraudulent evidence about the substitution of the Comtal Plan: The "Comtal Plans" were the building plans upon which the building contract was based: [A1]. On their face they identify that the client was Comtal Pty Ltd. They were the plans which were approved on behalf of the Land Development Agency as complying with the lease and development conditions applicable to the block but which had not been given development approval by the ACT Planning and Land Authority. The subsequently-approved plans were in some respects different from the approved plans.

38. The written submissions of Mr Mi do not identify where the statements of Mr Li which are identified as "fraudulent statements" were made. He pointed to evidence that an architectural company controlled by Mr Li prepared the plans. The arbitrator specifically considered the change from the Comtal Plans to the Approved Plans at [H9](c). Mr Mi did not identify any part of the decision involving an erroneous finding by the arbitrator in relation to the plans in the contract. In those circumstances I am not satisfied that the award was improperly procured.

39. Fraudulent evidence in relation to window ordering: Mr Mi submitted that the arbitrator was deceived by "Mr Li's fraudulent answer that Mr Mi took over the window order during the BA process". He contended that he had not taken over the window ordering process and drew attention to the findings at [H16] that "Mr Li agreed that he suspended work at some time after the meeting on 7 March 2013 .... It is also the case that at that time the windows which Mr Mi agreed to provide were yet to be delivered" and at [H47] "Even if 6 months was reasonable after approvals were obtained ... but was prevented from proceeding by such things as the windows and payment issue". He therefore submitted that the arbitrator was deceived.

40. The evidence of Mr Li identified in Mr Mi's submissions (transcript 25 February 2015 page 229) was:

Some of the windows that you had ordered based on an earlier plan would be of a different or wrong description to that that is in the BA approved plan, isn't it?---Yes.

Mr Mi wants you and tells you, or, Kai Design and Construction Pty Ltd, to only put windows that meet the description of those in the BA approved plan?---No. Mr Mi took over the window order during the [BA] process because there's about 5000 difference and he told me that he was going to pay for it and he is going to organise that, so I believe that, and the window I am going to put on based on the sketch and then the difference he will provide. So this is the base of my understanding, not the one used - what you say.

41. Mr Mi put forward a number of submissions directed to the proposition that, contrary to the evidence of Mr Li, Mr Mi did not take over the window ordering.

42. The reasons of the arbitrator appear to proceed on the basis that Mr Mi took responsibility for at least some part of the window ordering. Even assuming that finding to be incorrect (and I make no finding that it was incorrect) that would amount to a simple error of fact based upon the preference for some evidence that was before the arbitrator to other evidence that was before the arbitrator. Any such error of fact would be one of peripheral significance having regard to the other findings of the arbitrator to the effect that because of his assertion that windows were included in the Frame and Truss Stage and his refusal to pay the progress payment for that stage Mr Mi was in breach of the contract (see [H40]). Thus, even on the assumption most favourable to the plaintiff (which has not been established to be correct) I do not consider that this ground would provide a basis for concluding that the interim award was improperly procured.

Did the arbitrator misconduct the proceedings or himself?

43. As it is clear from the inclusive definition of misconduct in the Act (see [7] above) the concept is a broad one. It should not be given a restrictive meaning: Stannard v Spurway Constructions Pty Ltd [1990] VicRp 57; [1990] VR 673: Holland Stolte Pty Ltd v Murbay Pty Ltd (1991) 105 FLR 304. It may either be personal misconduct or procedural misconduct. Misconduct under this section may fall short of misconduct in the popular sense of the word: Commonwealth v Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662 at 673. It does not necessarily involve moral turpitude on the part of the arbitrator: Cockatoo Dockyard at 673. Any allegation of misconduct must be judged by taking the conduct of the arbitrator as a whole in the context of the particular proceedings: Gas & Fuel Corp (Vic) v Wood Hall Ltd & Leonard Pipeline Contractors Ltd [1978] VR 395; Galea v Galea (1990) 19 NSWLR 263. The range of matters which have been held to amount to misconduct is varied: Laws of Australia [13.7.1390].

44. In Holland Stolte Pty Ltd v Murbay Pty Ltd (1991) 105 FLR 304 at 308, Miles CJ described the scope of the power to set aside an award for misconduct in the following terms:

The power to set aside an award for misconduct is quite different from the power of judicial review. It is conferred by s 42(1), which limits the exercise of the power to one or other of two situations. The first is where there has been misconduct on the part of the arbitrator. The second is where the arbitration or the award has been "improperly procured", that is to say, the arbitration or the award has been contaminated by improper behaviour on the part of someone other than the arbitrator, for instance, where there has been suborning of a witness. Furthermore, s 44 provides that the Court may remove an arbitrator where "there has been misconduct on the part of an arbitrator or umpire or an arbitrator or umpire has misconducted the proceedings". I am unable to see any reason why misconduct in s 44 is to be given a substantially different meaning from that in s 42(1)(a). It could hardly have been the intention of the legislation that an arbitrator could be removed for so-called "technical misconduct" for procedural errors or indeed even for errors of law. To remove an arbitrator from office for such errors which must inevitably occur from time to time would render the position of an arbitrator too precarious and deprive the arbitration system of the regularity and stability necessary for an efficacious dispute resolution system which might be a proper alternative to judicial resolution.

In the light of all this, I come to the conclusion that although the word "misconduct" in s 42(1)(a) does not have to be read ejusdem generis with the categories of behaviour enumerated in the definition clause s 4 of the Act, there must nevertheless be some real dereliction of duty on the part of the arbitrator before it can be said that the arbitrator has been guilty of misconduct, or that the arbitrator has misconducted the proceedings.

45. Mr Mi identified a number of respects in which he alleges that the arbitrator misconducted of the proceedings. In summary they were:

(a) "The arbitrator refuse to hear evidence put forwarded by the plaintiff but extract only those available evidence from Mr Li that could help him to craft the Award."

(b) "The arbitrator refuse to hear evidence given by Mr Livi Krevatin and Benson Wu and put extraordinary spins on their evidence."

(c) "The "recollection" told by the arbitrator in the Award are completely different from the facts."

(d) "The arbitrator concealed material evidence of the arbitration."

(e) "Interpretation of evidence was strongly biased and out of reasonable man test."

(f) "The Arbitrator's orders are biased and inconsistent, and they favour only the other party."

(g) "The Arbitrator relied heavily on the Reply and Mr Shepherd's report but did not give opportunity to the Plaintiff to respond and did not let the Plaintiff know the quantum of the claim."

46. Refusal to hear evidence/extract evidence favourable to Mr Li: Mr Mi put forward a number of separate submissions in relation to this ground.

47. First, Mr Mi submitted that at [E24] of the award the arbitrator concluded that Mr Li was the builder under the contract. At [M6] of the award the arbitrator said that Mr Li was at all times the person who had contractual responsibility regardless of who he may have arranged to carry out the work. Mr Mi submitted that the arbitrator refused to address the most important question "who is the builder?". He referred to the Appointment of Builder & Application for Commencement Notice form signed by Mr Li on 11 September 2012 and the Building Commencement Notice dated 19 September 2012. Those documents which were brought into existence long after the contract was entered into identify the building licence holder as "Zheng Kai Li - Kai Design and Constructions P/L". He also contended that the findings in the award were contrary to the decision in Kai Design & Construction Pty Ltd v Mi [2016] ACTSC 269 at [31].

48. I am not satisfied that there is any failure on the part of the arbitrator to address the relevant issue. He clearly found that Mr Li was the builder under the contract. Mr Mi contended (contrary to the position he had adopted earlier in the proceedings) that the contract had been assigned to the Company. The manner in which forms such as the Appointment of Builder & Application for Commencement Notice and the Building Commencement Notice might have been completed were of some but not great relevance to that issue. The arbitrator assessed the assignment contentions of Mr Mi in some detail at [E9] to [E31].

49. The earlier decision of this Court referred to by Mr Mi was a decision given, prior to the making of the award, on an application by Mr Li seeking orders relating to the payment of the arbitrator's fees and freezing orders in relation to Mr Mi and his wife. It is not apparent how the arbitrator's conclusions were inconsistent with what I said in my earlier decision. However, in any event, the passage in the earlier decision referred to in Mr Mi's submissions was merely a summary of the issues in contention before the arbitrator. It did not purport to finally determine any issue. Therefore even if there was an inconsistency it would not provide a basis for demonstrating that there had been misconduct on the part of the arbitrator.

50. For these reasons I do not consider that the arbitrator failed to consider Mr Mi's submissions or that the arbitrator misconducted the proceedings or himself.

51. Second, Mr Mi also contended that there was an error that [H9](c) of the award where the arbitrator said "Mr Li had obtained initial Development Approval in November 2011". Mr Mi drew attention to the evidence that the stamp which had been placed in the plans was not in fact a development approval from the ACT Planning and Land Authority but was rather a pre-approval by a John Easthope acting on behalf the Land Development Agency. He submitted that this was inconsistent with the earlier finding in Chan v Wood & Kai Design Pty Ltd [2013] ACTSC 228 at [20] that the stop work notice had been issued because it emerged that the development was not exempt from the requirement for development approval which had not been obtained. Although the portion of the award referred to in Mr Mi's submissions does refer to "initial Development Approval", the context in which those words appear make it clear that the arbitrator recognised that the initial approval granted by Mr Easthope was "not ... sufficient as the ACTPLA approval process had to be followed to include the third garage." Later in the paragraph it is clear that the arbitrator recognised that the approval by Mr Easthope was ineffective and as a consequence the approval process stalled. While the use of the capitalised term "Development Approval" might not have been ideal having regard to the subtleties of the ACT planning legislation it is clear that the arbitrator appreciated the distinction between Mr Easthope's approval and that required from ACTPLA. Mr Mi's submission on this point does not provide a basis for concluding that the arbitrator misconducted himself.

52. Third, Mr Mi contended that there were errors in the award at [H41] and [H50] in the manner in which the arbitrator dealt with the issue raised in his defence that the termite barrier certificate and survey certificate were required to be provided to Mr Mi at completion of one of the stages said to be completed prior to the termination of the contract. He pointed to the statement in the building approval that "Survey Certificate is required at slab stage to proceed to the next stage" and the requirement of s 43(2) of the Building Act 2004. He also referred to an order of the ACT Civil and Administrative Tribunal dated 10 December 2014 which made consent orders requiring Mr Li to provide a termite certificate to Mr Mi.

53. The reasons of the arbitrator identified (at [H41]) that clause 24 of the contract provided that at practical completion all certificates were required to be handed to the owner. He also pointed out that the contract had come to an end before practical completion was achieved and hence the contractual obligation upon Mr Li to provide the certificates was never triggered. He therefore concluded that "The fact that they were not provided in March or April 2013 could not provide a basis for a breach of the Franklin Contract or establishing that Mr Li gave any indication that he did not intend to abide by the provisions of the Franklin Contract". Mr Mi's defence appears to have been based upon the assumption that the termite certificate needed to be handed over in order achieve completion of the Frame and Truss Stage. That contention is not consistent with the contract. While it could have been contended, if the relevant termite treatment was not installed that the stage had not been completed, assuming that it had been, then it was not a requirement of that stage to hand over the termite certificate. Similarly, although a survey certificate is required to proceed past dampcourse level, it is the certifier not the owner of the property that must receive the survey certificate.

54. Refusal to hear the evidence of Mr Krevatin and Benson Wu and "extraordinary spins" on their evidence: Mr Mi made only brief reference to the evidence of Mr Wu. The arbitrator said of Mr Wu's evidence (at [D2](e)):

Mr Wu, a former employee of Mr Li, was engaged by Mr Mi for completion of the work under the Franklin Contract. He was not a builder at the relevant times and undertook the task to assist Mr Mi in Mr Mi's capacity as an Owner Builder. His evidence as to costs was directed to the period after Mr Mi took over the work. As the Counterclaim did not succeed, except in respect of 2 minor items, Mr Wu's evidence did not assist in respect of the substantive issues and the quantum meruit assessment.

55. Having regard to the minimal submissions made by Mr Mi I cannot find that the manner in which Mr Wu's evidence was dealt with amount to misconduct on the part of the arbitrator or misconduct of the proceedings.

56. In relation to Mr Krevatin Mr Mi made detailed submissions about whether or not Mr Krevatin's evidence should have been accepted. The effect of his submissions was that Mr Krevatin's evidence, which favoured the proposition that the Truss and Frame Stage had not been completed, should have been accepted. On that critical issue the arbitrator made findings at [F14]. The arbitrator concluded that the oral evidence of Mr Krevatin that the Frame and Truss Stage was not complete did not sit comfortably with what Mr Krevatin had said in his contemporaneous inspection report which was completed for the purposes of the pre-sheet inspection but recorded "After a visual inspection of the Frames and Trusses they are installed and fixed correctly." At its highest, the manner in which the arbitrator addressed how to deal with Mr Krevatin's evidence was a decision necessary for the purposes of making a finding of mixed fact and law whether the Frame and Truss Stage had been reached. The arbitrator undertook an exercise and exposed his reasons. I am not satisfied that the approach taken by the arbitrator was incorrect and even if I was I would not be satisfied that any error would demonstrate misconduct on the part of the arbitrator.

57. The recollection of the arbitrator: Two matters are raised as part of this submission. The first is the evidence of Mr Li (referred to at [23] - [28] above) in relation to whether or not the Frame and Truss stage included the windows. Mr Mi made the submission that although the arbitrator was aware of the circumstances in which the answer was given he chose to ignore it. What weight could be given to the evidence of Mr Li in the light of the circumstances in which this evidence was given was very much a matter for the arbitrator, having regard to the fact that he was present when evidence was given and hence had a better appreciation of the relationship between the answer given by Mr Li and the words spoken by Mr Vivekananda and Ms White. I do not consider that the submission demonstrates that the arbitrator misconducted himself in relying, to the extent that he did, upon the answer of Mr Li.

58. The second matter raised under this heading relates to the finding of the arbitrator at [H61] where he indicated that he was not satisfied that Mr Li did not apply for and pay for the Fidelity Fund Insurance. This was an issue because Mr Mi contended that Mr Li had breached the terms of the contract by failing to take out and maintain home warranty insurance in his name as the builder and Mr Mi as the owner prior to commencing and while performing any works under the contract: [H55]. Mr Mi submitted that the ultimate conclusion of the arbitrator was "directly against" the oral evidence given by Mr Li. The proposition put to Mr Li was that "[t]he only insurance in respect to this building project was held by Kai Design and Construction Pty Ltd?". Mr Li answered "Yes". The arbitrator considered this issue at some length: [H56]-[H62]. He analysed the documentary material that was available relating to the insurance policy that was in place. He specifically referred to the admission by Mr Li in cross-examination but then referred to further evidence which the arbitrator considered "did not elicit a clear picture". The arbitrator's reasons disclose a careful consideration of the issue and I am not satisfied that any misconduct is demonstrated by the manner in which it was considered or the conclusion reached.

59. The arbitrator concealed material evidence: Although this complaint appears to relate to concealing material evidence, the matters raised in Mr Mi's submissions are more directed at failing to give weight to particular evidence.

60. The first matter relates to Mr Li's evidence about whether or not the windows were included in the frame and trust stage. Mr Li's evidence on this issue was considered by the arbitrator in some detail at [F8]. That paragraph provided:

Mr Li was unmoved in relation to whether the Frame and Trust Stage included windows. It was put to Mr Li in cross-examination that a window and a sliding door on a photograph marked by Mr Li at the request of the Respondent's Counsel were part of the Frame and Truss Stage. Mr Li was clear in his answer that they were not. Although it was submitted that the answer had been given by the solicitor for the Claimant it is my recollection of the evidence that the answer "No" was first given by Mr Li and then affirmed by the Claimant's Counsel. It may not have been correct for the Claimant's Counsel to have affirmed and added to the answer but the answer by Mr Li is sufficient to meet the proposition that was put to Mr Li that the 2 items he marked were part of the Frame and Truss Stage. It was also put to Mr Li in cross-examination that frames and trusses can include windows, "in the building industry". It was not put to Mr Li in this part of the cross examination that the Frame and Truss Stage necessarily includes or, in the case of the Franklin Contract, that it did include, windows. Mr Li agreed that it is better to do it at the same time but unnecessary and Mr Li's view regarding the frames and trusses was that a frame is a frame, a truss is a truss and a window is a window and that windows are not supporting. Mr Li agreed that it was easier to nail the window into the frame at the same time. None of this evidence points to the windows necessarily being part of the frame and truss payment stage or to Mr Li being of the view that the Frame and Truss Stage included windows. (Footnotes omitted)

61. Mr Mi submitted that what is there set out is contrary to the evidence given by Mr Li in cross-examination. He drew particular attention to the transcript of the proceedings on 5 March 2015 at page 300 which was part of the cross examination of Mr Li. In my view the evidence, when read as a whole, is consistent with the finding made by the arbitrator and inconsistent with the submission of Mr Mi. In any event, unless Mr Li's evidence amounted to a formal admission as to the requirements of the contract or evidence as to industry practice which might inform the interpretation of the contract, even if this portion of transcript could be interpreted so as to extract material favourable to Mr Mi's case it was, at best, of only peripheral significance for the interpretation of the terms of the contract.

62. The relevant portion of the cross examination is as set out below. I have emphasised those portions of the transcript which were relied upon by Mr Mi.

He said that you weren't entitled, or the company wasn't entitled to issue the invoice because you haven't reached that stage in the construction project?---That's from his point of view.

Yes, I accept what you're saying. At that stage, he said to you the windows aren't in. That was one of his complaints, wasn't it?---Yes.

That not all of the windows were, I think the words framed or put into the frame. That's correct, isn't it? That was one of his complaints?---Yes. That's his complaint.

He also complained that he was of the view that some of the windows that had been placed in the frame were not those that you were required to put in. That's his complaint, isn't it?---Yes.

As a result of that complaint, you told him you would do some more work, didn't you?---Yes.

Before he had to pay the invoice?---No. No matter what, he has to pay. I can rectify, but you still need to pay.

You told him that you would rectify. That's right, is it?---Yes.

Yes?---That would be that you would put all of the windows into the frame?---No. Not that meeting "Rectify" means if there's something wrong, then I fix it.

You accept that in February 2013 there was something wrong?---No. We just need to rectify.

Yes. What is it you needed to rectify?---Rectify maybe - we put one more brace in or we put one more (indistinct) that kind. Not just, like, remove the whole frame and do it again.

No, but you had to do some work to amount to comply to- - -?---No. Rectify. It's just like - it's already complete at that stage, but just need to do better. Like, put in more bracing or that kind of small touching. Touch up.

Part of that was putting the windows into the frames?---If the window is there.

Yes. If the windows are there, you'd put the windows into the frame. Yes?---Yes, but - that's the question. My answer is the bill has to pay, but I can - if the window is there, I can put it on. But you still need to pay. So don't cross the expression please.

... Whether it's rectification or not, how you describe it, after issuing the progress claim in February for the completed frames and trusses, you acknowledge that if windows were present at the site, they had to be placed in the frame, didn't they? To amount to- - -?---Because so many plans

Yes, true, so. But for the purpose of reaching the stage of frame and trusses completed- - -?---Yes.

- - -you acknowledge that if a window was at the site, it needed to be put into the frame?---If it's not correct, then you don't put it on.

Yes. But if it's there, it had to be put in, didn't it?---Yes.

All right. Now- - -?---But window and - frame and truss doesn't mean window. That's for cladding.

63. Even if it was a matter of significance to the interpretation of the contract, I do not consider that this passage contains an unequivocal admission on the part of Mr Li. I am certainly not satisfied that the manner in which the arbitrator dealt with this issue involves any misconduct of the proceedings or misconduct on his part.

64. The other matter referred to under this heading relates to the installation of incorrect windows by Mr Li in circumstances where he had been told by Mr Mi not to install them. He referred to a portion of the transcript in which Mr Li accepted that he had installed some windows even though they were not the correct ones in accordance with the latest version of the plans. The submissions of Mr Mi do not make clear what he asserts was the significance of the answers given by Mr Li in the portion of the transcript relied upon. The arbitrator considered the dispute between Mr Mi and Mr Li over windows in some detail ([H10] to [H15]). I am not satisfied that the evidence that some windows had been installed that Mr Mi considered to be incorrect windows demonstrates that the arbitrator misconducted himself or the proceedings.

65. Finally, Mr Mi submitted that the arbitrator neglected all the evidence given by Mr Li that he didn't want to do the Franklin project and that it was not profitable to him. In fact, the arbitrator expressly considered this issue at [M13]. This issue may have been relevant to assessing the conduct of Mr Li and determining whether or not he had breached or repudiated the contract. But for the election made by Mr Li to pursue reasonable remuneration rather than damages it might also have been relevant to the question of damages. However the arbitrator considered in substantial detail Mr Mi's contentions that Mr Li was in breach of the contract at the time Mr Mi terminated it. He rejected those contentions. It was that issue, not whether Mr Li would have profited from the completion of the contract, that was significant for the determination of the case. Because Mr Li ultimately claimed upon a quantum meruit and did not claim damages, the arbitrator was not required to consider how profitable the contract would ultimately have been.

66. I am not satisfied that Mr Mi has demonstrated that the arbitrator misconducted the proceedings or misconducted himself.

67. Interpretation of evidence was "strongly biased and out of reasonable man test": Under this heading Mr Mi refers to three areas of dispute.

68. First, the finding in the award at [E25] that Mr Li was wrong when he gave evidence that the company had taken over his obligations in April 2012. In relation to this submission Mr Mi identified several matters which he contended indicated that the company had taken over Mr Li's rights and obligations in 2012. The arbitrator considered this issue at length. It is clear that Mr Li and his earlier solicitor considered or contended that the contract had been assigned to the Company. The arbitrator reached a conclusion that it had not been assigned. There is nothing in the manner in which the arbitrator dealt with this aspect of the matter that indicated he was biased or had misconducted himself or the proceedings.

69. Second, the delay involved in the completion of the works beyond the six-month timeframe included in the contract. The contract specifies the start date for construction as being 14 November 2011 and the practical completion date being 14 May 2012. The complicated history of the matter following the issue of the stop work notice and the need to get a further approval meant that the contractual time frames were clearly not complied with. The arbitrator dealt with the issue of delay to some extent at [H9](c). Although the arbitrator did not expressly say so he appears to have proceeded on the basis that any delay beyond the contractually-specified construction period was not a matter which entitled Mr Mi to terminate the contract. I am not satisfied that the arbitrator's interpretation of the evidence was "strongly biased" or that it demonstrates misconduct on his part or misconduct of the proceedings.

70. Third, Mr Mi points to the conclusion of the arbitrator at [E26] in the award that an email dated 9 May 2012 from Mr Li to Mr Mi in which Mr Li had agreed to "cover all the cost occur" was not clear. This was an email dealing with the paperwork necessary to permit the commencement of work on the site. Of this the arbitrator said "Without more, it is not clear whether this meant that Mr Li intended to cover additional building costs or additional costs of Mr Mi." Mr Mi says that as a consequence of this conclusion he was awarded "not delay costs, not development approval costs, not Mr Li's duplicate work costs, not government's penalty costs". Having regard to the terms of the letter I am not satisfied that the conclusion of the arbitrator was incorrect. In any event, the costs referred to by Mr Mi were not properly identified and the pleaded basis for the claim based on this letter not identified. I am not satisfied that it demonstrates any misconduct on the part of the arbitrator or any misconduct of the proceedings.

71. Mr Mi also referred to the manner in which liquidated damages were dealt with at [L3] of the award where the arbitrator noted that they were agreed at "$Zero" per week. He contended that this was not consistent with the decision in Adapt Construction Pty Ltd v Whitaker [2015] ACTSC 188. How it is alleged that the approach of the arbitrator was inconsistent with the decision in Adapt Construction was not articulated. The arbitrator said: "Had it been necessary to consider the application of Liquidated Damages under the Franklin Contract, which it is not, it is noted that the agreed rate is $Zero per week."

72. In Adapt Construction Burns J had to consider whether or not the existence of a liquidated damages clause excluded an entitlement to liquidated damages. His Honour concluded that it did not. I do not consider that the conclusion reached in Adapt Construction is of significance in the present case. The arbitrator did not find that the liquidated damages clause excluded the possibility of a claim for unliquidated damages. He only noted after having dealt with a claim for unliquidated damages that the amount provided in the contract was "$Zero" per week. I am not satisfied that this is a matter which demonstrates misconduct on the part of the arbitrator or that he misconducted the proceedings.

73. Arbitrator's orders biased and inconsistent: Five matters are pointed to under this head:

(a) The rejection on 6 February 2015 of the application of the new IAMA Arbitration Rules articles 40 and 41 in circumstances where at the first conference in February 2014 the arbitrator had indicated that the parties were at liberty to apply for orders regarding the adoption of the rules. The relevant rules related to the limitation upon recoverable costs. The arbitrator rejected Mr Mi's submission that there should be a limitation on costs which was made one year after the arbitrator indicated that the parties could apply for orders in relation to the adoption of the new IAMA Rules.

(b) The arbitrator granting Mr Li's application to amend his statement of claim and his addition as a claimant in the proceedings despite opposition from Mr Mi. Mr Mi contended that the solicitor for the company had previously stated that the claims would not be amended.

(c) He contended that the order granting leave was clear and did not permit additional or augmented claims and that no leave had been granted for the filing of a reply or another expert report.

(d) The reply filed by Mr Li was "not an admissible reply" and included "a lot of fraudulent statements". Mr Mi contended that the reply increased the claim and that on the last day of the hearing it had not been admitted.

(e) Costs order for withdrawal of the company from 25 February 2015. It is not clear what the complaint in relation to this is.

74. Each of these matters appear to be matters where the arbitrator is alleged to have made an interlocutory decision that was unfavourable to Mr Mi. in order to establish bias or an apprehension of bias a party must identify what might lead the decision-maker to decide the case other than on its legal and factual merits as well as articulating a logical connection between the matter and the feared deviation from a course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]. The submissions of the plaintiff do not articulate why any or all of the interlocutory decisions referred to meet this test.

75. Mr Mi has not identified anything that indicated that these decisions resulted from bias or were otherwise the product of misconduct on the part of the arbitrator. I do not consider that the matters identified demonstrate that the arbitrator misconducted the proceedings or misconducted himself.

76. Arbitrator's reliance on the reply and Mr Shepheard's report, failure to give opportunity to the plaintiff to respond or know the quantum of the claim: The plaintiff's contention was that the report of Mr Shepheard should not have been relied upon. He made a number of submissions:

(a) The arbitrator never mentioned that he would rely heavily on the reply and Mr Shepheard's report;

(b) The arbitrator did not invite the plaintiff to provide a response to the key issues in the reply and Mr Shepheard's report;

(c) The findings of the arbitrator at [M9] of the award did not reflect the facts;

(d) Mr Sullivan did not ask Mr Li to provide a competing assessment for the reply;

(e) Mr Mi had no knowledge about the quantum claimed in Mr Li's final submission or amended submission;

(f) The final submission was not served on the plaintiff before the final hearing date and counsel for Mr Mi was only able to look at the document during lunchtime and make oral submissions immediately after that;

(g) The quantum of the claim made in final submissions was significantly different from the pleading;

(h) Mr Shepheard was called to give oral evidence without prior notification and before the plaintiff had a chance to read his report;

(i) A variety of matters were not provided to Mr Shepheard for the purposes of his report.

77. Mr Mi submitted that this case was "far worse" then the situation in Sugar Australia Pty Ltd v Mackay Sugar Ltd [2012] QSC 38 and must be set aside. In that case an award was set aside where an arbitrator had decided a question in the arbitration in circumstances where neither party had made a submission as to the meaning of the relevant clause and what if any effect the clause would have on the operation of the agreement. That depended upon whether the party should have anticipated that the arbitrator might determine the dispute by that reasoning without providing an opportunity to the party to put submissions or lead evidence to the contrary. Her Honour decided that the party should not have so anticipated and set aside the award.

78. The submissions of Mr Mi are directed at a denial of procedural fairness. Many of the assertions made in his submissions were not established by evidence.

79. In so far as complaint is made about reliance upon the report of Mr Shepheard, the report was admitted without objection and Mr Shepheard was cross-examined by counsel for Mr Mi on 16 June 2015. Having regard to the content of the report it must have been clear to Mr Mi and his legal advisers that it was to be relied upon by Mr Li and potentially by the arbitrator. It was a situation very clearly distinguishable from that in Sugar Australia.

80. So far as Mr Mi complains about the quantum claimed, Mr Li claimed in his Statement of Claim the sum of $175,037.08 plus an amount for profit of $33,257.05 as well as interest at the rates provided in the Court Procedures Rules. The amount awarded was $177,713 (which included an amount for profit) plus an additional amount for interest. I am not satisfied that this involved any denial of procedural fairness.

81. So far as Mr Mi complains about the manner in which the submissions were made to the arbitrator, the approach to submissions was made clear by the arbitrator in his correspondence of 5 November 2015 (Exhibit 7). That letter indicated that written submissions were not essential and that either or both parties could provide written submissions. He indicated that counsel were to discuss with each other their preferences in relation to service written submissions.

82. Mr Mi bears the onus of establishing a denial of procedural fairness. I am not satisfied that he has discharged that onus.

Is there a manifest error of law on the face of the award

83. In Westport Insurance v Gordian Runoff [2011] HCA 37; (2011) 244 CLR 239 at [42] a majority of the High Court identified that the words "a manifest error of law on the face of the award" comprise a phrase which was to be read and understood as expressing the one idea. What is required was the existence of the error of law to be manifest on the face of the award including the reasons given by the arbitrator. If the error is manifest and the determination of the question could substantially affect the rights of at least one of the parties then there is the discretion to give leave under the statute. The majority judgment rejected the proposition that in order to be "manifest" what was required was an error of law of a particular character: [45].

84. The written submissions on this point were limited even though asserting a large number of manifest errors of law. I will set them out in full:

17. There are numerous errors of law in the Award. At least following issues could be identified from the Award: (a) Development approval obtained in November 2011; (b) identification of the builder under the Building Act 2004; (c) Purported Assignment; (d) Estoppel to deny a purported assignment; (e) Carry out works shown on the Approved Plan; and (f) Verification of Survey Reports and Termite Certificate during stages; (g) Steel frames are not included in frame and truss stage; (h) Strap-down or tie-down are not included in frame and truss stage and they are minor; (i) Fidelity Fund are not required to be provided by the builder and can be provided by the owner; (j) Waiver of Ms White's email in November 2014; (k) Performing in proper and skilful manner; (l) Time frame for the construction period; (m) Claim for damage for delay with a $0/week liquidated damages term in the contract; (n)Quantum meruit claim from a party in default; (o) Profit and costs for the Franklin Project with admission of losses by the claimant; (p) Progress claim by Mr Li without issuing invoice as an individual; (q) Who perform the work? (r)Interest calculation based on an estimated figure from an "expert" report and not from Mr Li's progress payment claim; and (s) Admissibility of filing a reply and expert report at a very late stage; (t) fraud.

85. In the light of the manner in which the errors are identified in the written submissions it is difficult to identify the precise errors alleged. While at least some of the identified subject matters are matters which were required to be dealt with as part of the award, no particular part of the award was identified as involving a manifest error of law. It is not the task of a court faced with an application for leave to appeal under s 38 to search largely unassisted through the reasons of the arbitrator in order to discover for itself an error that might warrant a grant of leave. Having read the award and taken into account the written and oral submissions made by Mr Mi no manifest error of law is apparent. I am therefore not satisfied that leave to appeal from the award under s 38 should be granted.

86. As will be apparent from my summary of the submissions made by Mr Mi set out above, many of them sought to challenge findings of fact or mixed questions of fact and law. While Mr Mi sought to characterise his contentions as going to matters within the scope of s 38, 42, 44 they did not fit within the limited scope of those permitted grounds of challenge. The limits upon the grounds of challenge available under the CA Act to the decisions of arbitrators cannot be ignored. For the reasons I have given, Mr Mi's challenge to the arbitrator's decision must fail. The consequence of that conclusion is that:

(a) the interim award should not be set aside;

(b) leave to appeal under s 38 should be refused;

(c) the arbitrator should not be removed;

(d) the arbitration should not be terminated and the dispute should not be removed in to the Supreme Court.

87. The effect of the dismissal of the proceedings will be that the stay upon the arbitration proceedings consented to by the parties will end seven days after the date of the dismissal of the proceedings.

2. The proceedings are listed on 29 March 2017 at 9.30am for any argument in relation to costs. The parties must file and serve any evidence to be relied upon in relation to costs no later than 24 March 2017. The parties have liberty (but are not required) to provide by email to my associate an outline of submissions on costs no longer than three pages no later than 4pm on 27 March 2017. Oral submissions by each party will be limited to no longer than 15 minutes.

I certify that the preceding [88] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

17 March 2017 Cover page: Corrections to name of plaintiff and second defendant