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McKensey v Hewitt

McKensey v Hewitt

Case [2004] NSWSC 636 19 July 2004

Arbitration Agreement

Stamp Duty

Enforceability of Arbitration Awards

Ante Dating Orders

Costs

Civil Litigation & Procedure

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Reported Decision:
61 NSWLR 54

Supreme Court

CITATION: McKensey v Hewitt [2004] NSWSC 636

HEARING DATE(S): 23/06/04

JUDGMENT DATE:
19 July 2004

JURISDICTION:
Equity Division

JUDGMENT OF: Young CJ in Eq

DECISION: Award to be enforced. Decline application to antedate judgment.

CATCHWORDS: ARBITRATION [89]- Agreement between parties for arbitration not stamped- Arbitration conducted without stamping point being taken- Whether award enforceable. PROCEDURE [113]- Judgments and orders- Ante dating order- When to be contemplated. PROCEDURE [616]- Costs- Premature appointment of cost assessor- Consequences. TAXES & DUTIES [418]- Unstamped agreement providing inter alia for arbitration of disputes- Arbitration agreement produced in accordance with its terms- Arbitrator appointed and made award- Stamping point not taken before arbitrator- Whether award void.

LEGISLATION CITED: Legal Profession Act 1987, s 202
Stamp Duties Act 1920, ss 29, 41

CASES CITED: Acclaim Holdings Pty Ltd v Vlado Pty Ltd (1989) 1 WAR 128
Ash Street Properties Pty Ltd v Pollnow (1987) 9 NSWLR 80
Baker v Nixon (1867) 7 SCR (NSW) 15
Barilla v James (1964) 81 WN (Pt 1) (NSW) 457
Belgian Grain & Produce Co Ltd v Cox & Co (France) Ltd [1919] WN (Eng) 317
Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589
Dent v Moore (1919) 26 CLR 316
Dimmock v Whymark (1964) 65 SR (NSW) 194
Ecroyd v Coulthard [1897] 2 Ch 554
Foppoli v Public Trustee [1970] WAR 73
GIO v Healey (No 2) (1991) 22 NSWLR 380
Hoggett v O'Rourke [2002] 1 Qd R 490
Loveridge v Healey [2004] EWCA Civ 173
Marx v Estates & General Investments Ltd [1976] 1 WLR 380; [1975] 3 All ER 1064
Mornan Nominees Pty Ltd v Comptroller of Stamps Vic (1982) 13 ATR 947
Owen v Thomas (1834) 3 My & K 353; 40 ER 134
R v Fulham, Hammersmith & Kensington Rent Tribunal [1951] 2 KB 1
Re Keystone Knitting Mills' Trademark [1929] 1 Ch 92
Re Sims (1980) 50 FLR 286
Rothwells Ltd v Connell (1993) 119 ALR 538
Rothwells Ltd v Connell (No 2) [1993] ATC 4593
Routledge v McKay [1954] 1 WLR 615; [1954] 1 All ER 855
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Silovi Pty Ltd v Barbaro (1988) 13 NSWLR 466
Turner v London & Southwestern Railway Co (1874) LR 17 Eq 561

PARTIES :
Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks (P)
Christopher Michael Hewitt (D)

FILE NUMBER(S): SC 1585/95

COUNSEL: T Alexis SC (P)
M Ashhurst (D)

SOLICITORS: Harris Wheeler (P)
Hewitts (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 19 July 2004

1585/95 – McKENSEY v HEWITT

JUDGMENT

1 HIS HONOUR: This is yet another episode in the long running litigation over the former partnership of Forsythes Accountants at Newcastle.

2 The present episode concerns the arbitration award made on 28 August 2003. The points argued before me on this motion are: (1) whether the award should be enforced; and (2) whether 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 McKensey v Hewitt

Details

AGLC: McKensey v Hewitt [2004] NSWSC 636
Case: [2004] NSWSC 636
Decision Date: 19 July 2004

CaseChat Overview and Summary

In the case of McKensey v Hewitt, the primary dispute between the parties involved the enforceability of an arbitration award due to the failure to stamp the arbitration agreement as required by law. The matter was heard by the Supreme Court of a certain Australian jurisdiction. The crux of the issue was whether the arbitration award was valid and enforceable given that the arbitration agreement had not been stamped before the arbitration process was initiated, and the award itself was made without the requisite stamp.

The court was tasked with determining the enforceability of the arbitration award and whether the failure to stamp the arbitration agreement invalidated the entire arbitration process. Additionally, the court had to consider procedural matters, including the ante-dating of orders, and the implications of appointing a costs assessor prematurely. The court was required to balance the statutory requirements with the practicalities of arbitration and the rights of the parties involved.

The court held that the arbitration award was enforceable despite the failure to stamp the arbitration agreement. The court reasoned that the agreement was produced in accordance with its terms, an arbitrator was appointed, and the award was made without the stamping point being taken before the arbitrator. Consequently, the court found that the award was valid and enforceable. Furthermore, the court addressed the procedural issues, including the ante-dating of orders and the premature appointment of a costs assessor, providing clarity on when such actions might be contemplated and their consequences.

The final orders of the court confirmed the enforceability of the arbitration award and outlined the procedural steps to be taken in future cases to ensure compliance with relevant statutory requirements. The court’s decision provided a clear framework for handling similar disputes in the future, ensuring that the enforceability of arbitration awards was balanced with statutory compliance.

Orders