Carr v Gallaway Cook Allan - [2012] NZHC 1537

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-412-000417 [2012] NZHC 1537

UNDER the Arbitration Act 1996

IN THE MATTER OF an appeal from a partial award dated 9 May
2011

BETWEEN EWAN ROBERT CARR First Plaintiff

ANDBROOKSIDE FARM TRUST LIMITED Second Plaintiff

ANDGALLAWAY COOK ALLAN Defendant

Hearing: 13-14 March 2012

Counsel: J G Miles QC and P J Dale for the Plaintiffs
M G Ring QC and A V Foote for the Defendant

Judgment: 28 June 2012

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 28 June 2012 at 12.30 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors: GCA Lawyers, PO Box 3241, Christchurch
Duncan Cotterill, PO Box 5, Christchurch

Counsel: J G Miles QC, PO Box 4338, Auckland 1140
M Ring QC, PO Box 1055221, Auckland
P J Dale, PO Box 130, Auckland 1140

CARR V GALLAWAY COOK ALLAN HC AK CIV-2011-412-000417 [28 June 2012]

[1] This judgment deals with various applications and cross-applications made by the plaintiffs (the Carr interests) and the defendants (Gallaways) in relation to an interim arbitral award issued by Dr Robert Fisher QC on 9 May 2011. In essence:

(a) the Carr interests seek to have that award set aside or to appeal from it; and

(b)Gallaways seek to have those applications/appeals dismissed, stayed or struck out.

Background

[2] By agreement dated 28 September 2010, Dr Robert Fisher QC was appointed sole arbitrator to determine a claim for some $12 million made by the Carr interests against Gallaways for professional negligence. The Carr interests hold Gallaways responsible for the cancellation of an agreement they had to purchase a group of farming and hotel assets in the Maniatoto Basin in Otago from a Mr Rodney Humphries and associated entities (the Humphries interests). This agreement is referred to in Dr Fisher’s award as the Amended Settlement Agreement or ASA and I shall adopt the same abbreviation in this judgment.

[3] At the time of entry into the arbitration agreement, the cancellation of the ASA had already been the subject of separate litigation between the Carr and the Humphries’ interests.1 Insofar as the lis between the parties to that litigation was concerned, both the High Court and the Court of Appeal found in favour of the Humphries’ interests and, more particularly, held that Mr Humphries was entitled to cancel the ASA because settlement had not occurred by the time stipulated in the ASA (namely by 4 pm on 31 May 2007) time being of the essence.

[4] In the course of that litigation both the High Court and the Court of Appeal made observations which suggested that Gallaways (or, more particularly, Mr Grant)

1 Frost v Carr HC Dunedin CIV-2007-412-507, 29 February 2008; Carr v Frost [2008] NZCA 391.

had been largely responsible for the failure to settle on time. A claim by the Carr interests against Gallaways therefore came into prospect.

[5] On…

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.

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Details

Case: [2012] NZHC 1537
Decision Date: 28 June 2012

CaseChat Overview and Summary

Carr v Gallaway Cook Allan was a case heard in the High Court of New Zealand Auckland Registry. The case involved an appeal from a partial award issued by Dr Robert Fisher QC on 9 May 2011. The plaintiffs, Ewan Robert Carr and Brookside Farm Trust Limited, sought to have the award set aside or to appeal from it, while the defendant, Gallaway Cook Allan, sought to have the applications/appeals dismissed, stayed or struck out. The legal issues in the case included the validity of the arbitration agreement, the possibility of setting aside the award on other grounds, the application of estoppel, and the requirement for leave to appeal. The court found that the arbitration agreement was not valid under New Zealand law due to the inclusion of an invalid right of appeal on questions of fact. The court also held that the plaintiffs were time-barred from setting aside the award on other grounds, and that their claim for estoppel was not tenable. The court further held that the plaintiffs did not require leave to appeal from the award on a question of law. The court set aside the interim award and granted the defendant's application for summary judgment on the plaintiffs' claim under the Contractual Mistakes Act 1977. The court made orders that the plaintiffs have not pleaded an application to set aside the award on any other grounds and they are now time-barred from doing so, and that the plaintiffs' claim for estoppel is similarly not tenable and should be struck out. The court also held that the plaintiffs do not require leave to appeal from the award on a question of law, but that if leave was required it would be granted to the extent that any identifiable question of law has been pleaded.

Orders