Practice (N.S.W.)—Arbitration—Action in Supreme Court of New South Wales—Reference by Court of questions in dispute to arbitrator—Award—Application to set aside award—Grounds of review—Whether limited to those upon &hich the award of an arbitrator on a reference out of court would be reviewable—Arbitration Act, 1902 (N.S.W.), ss. 15, 16.
Decisions
1978, May 23. The following written judgments were delivered: - BARWICK C.J. Bruce Holroyd Buckley and Dirk Bienefelt (the appellants) were plaintiffs and cross-defendants in a suit in the Equity Division of the Supreme Court of New South Wales to which Bennell Design &Constructions Pty. Ltd. (the first respondent) was a defendant and cross-claimant. The appellants sought in the suit a declaration that a building contract between the appellants and the first respondent had been rescinded, and consequential injunctions. (at p3)
2. After the commencement of the proceedings, the Court (Holland J.), by consent of these parties, ordered "That the questions and matters in dispute in these proceedings be referred to" a named person "as arbitrator, being the arbitrator agreed upon by the parties, under the provisions of Section 15 of the Arbitration Act, 1902". That was on 8th March 1974. The arbitrator entered upon the reference and published his award. That was on 2nd April 1976. (at p3)
3. Thereafter the appellants, by summons in the proceedings, sought of the Supreme Court an order that the award "be set aside or referred back" to the arbitrator or, alternatively, that the arbitrator be ordered to state in the form of a special case his findings as expressed in the award and his reasons therefor. The grounds on which the appellants based their summons included the following: "1. The . . . (Arbitrator) has misconducted himself or misconceived his function . . . 2. . . . the arbitration proceedings were misconducted or miscarried: (i) The award is inconsistent and bad on its face in that it discloses errors of fact and law. (ii) The award does not or is uncertain as to whether it does disclose findings . . . determining the matters referred to arbitration by the Court and/or arising from the pleadings . . . in the arbitration and the particulars exchanged by the parties . . . and determine matters outside of those referred by the Court. (iii) . . . (iv) The . . . (Arbitrator) erred in law in that he failed to state a case or bring down the award in the form of a special case when reasonably requested so to do by Counsel for the Plaintiffs . . . (v) The . . . (Arbitrator) erred in law in failing to observe the rules of procedure and evidence and in excluding, failing to have regard to or giving insufficient weight to material evidence and in bringing down an award which was reasonable and against the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Buckley v Bennell Design & Constructions Pty Ltd
Buckley v Bennell Design & Constructions Pty Ltd concerned a dispute between a builder, Bennell Design & Constructions Pty Ltd, and a home owner, Buckley. The home owner sought to recover damages for alleged breaches of a building contract. The case was heard by the High Court of Australia.
The central legal issue before the High Court was whether the builder had breached the building contract by failing to complete the construction of the home within a reasonable time. This involved an examination of the terms of the contract, the conduct of the parties, and the surrounding circumstances to determine if the delay in completion was attributable to the builder's fault.
The Court considered the principles of contract law relating to performance and breach, particularly the implied term of reasonable time for completion where no express date is stipulated. The judges analysed the evidence presented regarding the progress of the construction, any extensions of time granted or sought, and the reasons for any delays. The Court ultimately found that the builder had not breached the contract by failing to complete the work within a reasonable time, as the delays were not solely attributable to the builder's actions or omissions.
The High Court dismissed the appeal, upholding the decision of the lower court.