Millwood Rise Developments Pty Ltd v Winslow Pty Ltd [2025] QSC 238

"1 Pursuant to section 11(4) of the Commercial Arbitration Act 2013 (Qld), or alternatively section 11(3), the Court appoint an arbitrator in respect of the disputes between the Applicant and the Respondent the subject of:

(a) the Respondent's Notice of Dispute dated 22 January 2025 (and subsequent correspondence); and

(b) the Applicant's Notice of Dispute dated 22 May 2025 (and subsequent correspondence).

1. Further, that the Arbitrator appointed by the Court be one of the following three persons:

1. The Respondent pay the Applicant's costs of the application."

• [2] By the time the application was heard by me, Millwood and the respondent, Winslow Pty Ltd, had agreed to appoint Mark Johnston KC as arbitrator with respect to the disputes referred to within the orders sought.
• [3] The concession that an arbitrator should be appointed was made by Winslow after Millwood filed its application. Millwood now seeks an order that Winslow pays its costs of the application. Winslow resists. That issue now falls to be determined.

• [4] Millwood is a subsidiary company of residential property developer CFMG Capital Limited. Winslow is a civil works contractor.
• [5] On 11 December 2022, Millwood and Winslow entered into a contract for the construction of roadworks, drainage, water supply, sewerage reticulation and conduiting by Winslow for a development in Nambour. The executed contract included a formal instrument of agreement, amended general conditions of the contract, and annexures.
• [6] Clause 47 of the amended general conditions, entitled "Dispute Resolution", is in a standard form and prescribes how the parties are to deal with disputes arising under the contract:

If a dispute between the Contractor and the Principal arises out of or in connection with the Contract, including a dispute concerning a direction given by the Superintendent, then either party shall deliver by hand or send by certified mail to the other party and to the Superintendent a notice of dispute in writing adequately identifying and providing details of the dispute.

Notwithstanding the existence of a dispute, the Principal and the Contractor shall continue to perform the Contract, and subject to Clause 44, the Contractor shall continue with the work under the Contract and the Principal and the Contractor shall continue to comply with Clause 42.1.

A claim in tort, under statute or for restitution based on unjust enrichment or for rectification or frustration, may be included in an arbitration.

Within 14 days after service of a notice of dispute, the parties shall confer at least once, and at the option of either party and provided the Superintendent so agrees, in the presence of the Superintendent, to attempt to resolve the dispute and failing resolution of the dispute to explore and if possible agree on methods of resolving the dispute by other means. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute.

In the event that the dispute cannot be so resolved or if at any time either party considers that the other party is not making reasonable efforts to resolve the dispute, either party may by notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration or litigation.

A party served with a notice of dispute may give a written response to the notice to the other party and the Superintendent within 28 days of the receipt of the notice.

Within 42 days of the service on the Superintendent of a notice of dispute or within 14 days of the receipt by the Superintendent of the written response, whichever is the earlier, the Superintendent shall give to each party the Superintendent's written decision on the dispute, together with reasons for the decision.

If either party is dissatisfied with the decision of the Superintendent, or if the Superintendent fails to give a written decision on the dispute within the time required under Clause 47.2 the parties shall, within 14 days of the date of receipt of the decision, or within 14 days of the date upon which the decision should have been given by the Superintendent confer at least once to attempt to resolve the dispute and failing resolution of the dispute to explore and if possible agree on methods of resolving the dispute by other means. At any such conference, each party shall be represented by a person having authority to agree to a resolution of the dispute.

In the event that the dispute cannot be so resolved or if at any time after the Superintendent efforts to resolve the dispute, either party may, by notice in writing delivered by hand or has given a decision either party considers that the other party is not making reasonable sent by certified mail to the other party, refer such dispute to arbitration or litigation.

Arbitration shall be effected by a single arbitrator who shall be nominated by the person named in the Annexure Part A, or if no person is named, by the Chairperson for the time being of the Chapter of the Institute of Arbitrators Australia named in Annexure Part A. Such arbitration shall be held in the State or Territory stated in the in the State or Territory stated in Annexure Part A.

Unless the parties agree in writing, any person agreed upon by the parties to resolve the dispute pursuant to Clause 47.2 shall not be appointed as an arbitrator, nor may that person be called as a witness by either party in any proceedings.

Notwithstanding Clause 42.9, the arbitrator may award whatever interest the arbitrator considers reasonable.

If one party has overpaid the other, whether pursuant to a Superintendent's certificate or not and whether under a mistake of law or fact, the arbitrator may order repayment together with interest.

Nothing herein shall prejudice the right of a party to institute proceedings to enforce payment due under Clause 42 or to seek urgent injunctive or declaratory relief in respect of a dispute under Clause 47 or any matter arising under the Contract." (emphasis added)

• [7] As can be seen, cl 47 establishes a dispute resolution process whereby:

(a) a dispute arises under the contract;

(b) either party delivers to the other party and to the Superintendent a notice of dispute;

(c) within 14 days after service of a notice of dispute, the parties confer at least once to attempt to resolve the dispute;

(d) in the event that the dispute cannot be resolved, either party may, by notice in writing, refer the dispute to arbitration or litigation; and

(e) an arbitrator must be appointed by the designated nominator in Annexure Part A to the Contract.

• [8] Annexure Part A to the Contract names the designated nominator referred to by cl 47.3 as the "President of the Institute of Engineers Australia". No such entity exists and the Annexure means to refer to the President of Engineers Australia. For reasons which will become clear, nothing turns on this designation.
• [9] On 17 January 2025, Millwood served Winslow with a demand for liquidated damages it said arose under the Contract for unauthorised delays to the date of practical completion. In response, on 22 January 2025, Winslow issued a notice of dispute pursuant to cl 47.1.
• [10] The parties' representatives met on 3 February 2025 in an attempt to resolve the dispute, as prescribed by cl 47.2, but could not come to a resolution. On 25 February 2025, Winslow notified Millwood that it intended to refer the dispute to arbitration pursuant to cl 47.2, and stated:

"In accordance with clause 47.3 and Part A of the Contract, the President of the Institute of Engineers Australia shall nominate an arbitrator"

• [11] On 22 May 2025, Millwood sent a notice of dispute to Winslow. The notice concerned new disputes which had arisen under the Contract in relation to variations and alleged extensions of time.
• [12] On 26 May 2025, Millwood sent a letter to Winslow which concerned Winslow's referral of the dispute to arbitration dated 25 February 2025. In its letter, Millwood stated that Winslow's notice of dispute issued on 22 January 2025 was invalid, the obligations prescribed by cl 47.2 had not been discharged, and Winslow's referral to arbitration was invalid.
• [13] On 30 May 2025, Mr Brendan Dover, a Senior Contract Administrator employed by Winslow, sent an email to Millwood which proposed a meeting pursuant to cl 47.2 in relation to the disputes, and requested that Millwood provide three arbitrators for Winslow's consideration.
• [14] On 10 June 2025, Millwood sent a further letter to Winslow. The letter reiterated Millwood's position that Winslow's referral to arbitration on 25 February 2025[1] was invalid, but nonetheless nominated three candidates for appointment as arbitrator for Winslow's consideration. Millwood's letter requested that Winslow provide a reply with respect to the proposed arbitrators and "the process going forward".
• [15] On the same day, Millwood sent a further letter referring the matters the subject of the notice of dispute issued on 22 May 2025 to arbitration. Within the letter, Millwood noted that the President of Engineers Australia, the designated nominator named in Annexure Part A, no longer provides the service of nominating arbitrators. Accordingly, Millwood proposed three candidates for Winslow's consideration and requested a response by 17 June 2025.

• [16] No response was received. On 18 June 2025, Millwood sent a further letter noting Winslow's failure to respond, requesting a response by 20 June 2025, and noting its intention to apply to the Court for the appointment of an arbitrator pursuant to s 11(4) of the Commercial Arbitration Act 2013 (CAA), which relevantly provides:

"(4) Where, under an appointment procedure agreed on by the parties -

(a) a party fails to act as required under the procedure; or

(b) the parties, or 2 or more arbitrators, are unable to reach an agreement expected of them under the procedure; or

(c) a third party, including an institution, fails to perform any function entrusted to it under the procedure;

any party may request the Court to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment." (emphasis added)

• [17] On 20 June 2025, Mr Dover sent a letter to Millwood. In it, he stated that Winslow rejected the proposed candidates, and asked that Millwood confirm that the proposed arbitrators are available, have no conflicts, and to provide their rates. Mr Dover also noted that any attempt by Millwood to commence proceedings under the CAA without providing the requested information would be "unreasonable and premature".
• [18] Material before me shows that Millwood contacted the proposed arbitrators and obtained the information requested by Winslow.
• [19] Millwood replied on 25 June 2025. Its letter provided the information requested by Winslow and again requested that Winslow provide candidates for arbitration, this time by "no later than 27 June 2025". The letter concluded in this way:

"The Principal[2] does not consider the Contractor's[3] 20 June Letter to be a satisfactory response and reserves the right to make an application to the Court under section 11 of the Commercial Arbitration Act 2013 (CAA) should the Contractor continue to engage in an unsatisfactory manner..."

• [20] On 27 June 2025, Mr Dover sent a letter in reply. The letter stated inter alia Winslow's position that:

(a) the parties had not agreed to refer both matters in dispute to a single arbitration;

(b) it rejected the three candidates proposed;

(c) it rejected Millwood applying to the Court for the nomination of an arbitrator pursuant to the CAA; and

(d) it was open to discussion regarding the Chairperson of the Institute of Arbitrators Australia (Qld) (who is expressly mentioned as an alternative to the President of Engineers Australia in cl 47.2) nominating an arbitrator for the parties.

• [21] Mr Dover's letter of 27 June 2025 also refers to adjudication proceedings apparently on-foot between the parties. That is significant because Mr Dover expresses Winslow's position regarding this as follows:

"5. The parties currently have a matter to deal with within Adjudication Application 2845489.

1. Post adjudication determination, Winslow will consider if further matters will be referred to dispute under the Contract. A failure to resolve the dispute ( if enacted ) will result in further items being referred to Arbitration by the Contractor.
2. Based on the above information ( and agreed processes between Winslow and a related party of the Principal today ), it is clear that any approach to court to nominate an Arbitrator by the Principal on one (1) of potentially three (3) referrals to Arbitration is at least premature"

• [22] The correspondence exchanged following the 27 June 2025 letter repeats much of the parties' positions described above. Of note, by letter dated 3 July 2025, Millwood reiterated its proposal to bring an application to the Court pursuant to the CCA and attached a draft originating application for orders in the terms set out at paragraph [1] of these reasons. A further request for Winslow to provide a nominated arbitrator by 7 July 2025 was communicated.
• [23] By emails dated 7 July 2025, Mr Dover requested an extension for the time to provide proposed arbitrators to 9 July 2025.
• [24] It appears no nominated arbitrators were provided by Winslow by that date, or until 18 July 2025, when Millwood filed the originating application the subject of these proceedings.
• [25] The application was served on Mr Dover on 18 July 2025, and an "acknowledgment of service" provided to the Court demonstrates he received the sealed originating application at 1.28 pm on that day.
• [26] At 1.29 pm on the same day, Mr Dover sent an email to Millwood which contained two proposed arbitrators. Millwood later rejected both candidates on account of perceived conflicts of interest.
• [27] Following the originating application being filed, it appears that both parties engaged solicitors to communicate on their behalf.
• [28] On 8 August 2025, a week before this application was listed to be heard, solicitors for Winslow sent a letter to Millwood which stated that Winslow agreed to the appointment of Mark Johnston as arbitrator.
• [29] It seems that from that point there was no longer any dispute between the parties as to the appointment of an arbitrator. There is no need for any order appointing an arbitrator to be made. Winslow sought to vacate the hearing of the application by consent with no order as to costs, but Millwood resisted. Millwood seeks its costs.

• [30] Millwood relies on r 681 of the Uniform Civil Procedure Rules 1999 and submits that costs should follow the event; the event being, it says, the appointment of Mr Johnston, which had been sought by Millwood.
• [31] In support of its submission, Millwood relies on the exchange of correspondence outlined above. It says that Winslow had ample time to agree to the appointment of the arbitrator and refused to engage with the arbitration process.
• [32] Winslow submits there should be no order as to costs and the application should be dismissed, or, alternatively, that the costs should be the costs in the eventual arbitration. It says that Millwood's application was premature and ought not to have been brought until all disputes arising under the contract had crystalised, including the adjudication application.

• [33] As earlier observed, there is an outstanding adjudication application between the parties. Though there is no substantive material before me regarding the nature of the adjudication, counsel for Winslow advised during submissions, and it was not objected to, that it related to payment at the point of practical completion under the Contract, and, therefore, relates to all of the work completed prior to the point of practical completion.
• [34] Winslow says that the scope and nature of the dispute within the outstanding adjudication will likely result in a further notice of dispute under the contract, and a subsequent referral to arbitration. Accordingly, it says, there was no utility in bringing an application for appointment, until the adjudication and the associated dispute was either resolved, or had been referred to arbitration. That is an odd submission in light of the concession that Mr Johnston be appointed as arbitrator.
• [35] Winslow also relies on the parties having chosen not to provide rules for particular timeframes when referring disputes under the contract to arbitration or for the appointment of an arbitrator under cl 47.3. The crux of its submission, it seems, is that Winslow was under no contractual obligation to expedite or bring effect to the arbitration process, particularly in circumstances where a further, larger dispute was likely to arise before any conclusion would be reached. As such, it says that Millwood ought not to have brought an application to this Court in those circumstances.
• [36] Counsel for Millwood, in response, asserted that a potential dispute possibly being in play should not bar Millwood from proceeding with the disputes currently on-foot.

• [37] Millwood proposed three candidates on 10 June 2025. The application was filed and served on 18 July 2025, about five weeks later. That provoked an immediate response from Winslow who then nominated two proposed arbitrators and when they were rejected, Winslow agreed, on 8 August 2025, to the appointment of Mr Johnston as arbitrator. Mr Johnston was one of the three candidates proposed by Millwood on 10 June 2025.
• [38] Winslow has, therefore, accepted that Mr Johnston be appointed and only did so after the application was filed and served. The only reasonable inference to draw is that it was necessary for Millwood to file and serve its application in order to obtain the appointment of Mr Johnston and that Winslow has now conceded that relief be granted.
• [39] It may be that other disputes are referred to arbitration, but if there was serious objection to Mr Johnston's appointment the application would have been resisted.
• [40] Costs should follow the event.

• [41] It is ordered that the respondent pay the applicant's costs of the application to be assessed.

[1] As outlined in paragraph [12] of these reasons.