BURMEISTER V. MAGUIRE

ae RASIASR x oe

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR. JUDGMENT

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MEISTER

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MAGUL

WILLIAMS 2 oO s ef a=) Al

BURMEISTER

ve MAGUIRE TUDGUENT (ORAL) WILL;

This is an appeal by the defendant fron an order of the Full Supreme Court of queensland in an action brought by the respondent against the appellant to recover the sum of £756. 2. 6 and certain interest which was awarded to the plaintiff under an award of two arbitrators made on the 12th day of august, 1950. The plaintiff and defendant had been in partnership in the business of sawmillers at Maryborough in the State of Queensland. The partnership was dissolved and it was agreed that matters in dispute between the parties should be referred to the two arbitrators, and it was pursuant to that agreement that the arbitrators made the award of the 12th August, 19506. In the action the learned trial Judge gave judgment for the plaintiff for the amount of £756. 2. 6 and the interest to which I have referred. There was an appeal to the Full Supreme Court of Queensland. The Full Court set aside the judgment below but found in favour of the plaintiff to the extent that they ordered that the award should be specifically performed. They did that because the award contained two conditions which the plaintiff had to perform in order to become entitled to the money. The defendant in appealing to us does not desire that the order of the Full Supreme Court should be set aside unless he succeeds in establishing that

no order in favour of the plaintiff should have been made in

:

the action at all and that the action should have been dismissed with costs.

The two main grounds that have been argued before us appear in the Notice of Appeal. The first is that the award upon which the plaintiff's claim was based was invalid and unenforceable in that it did not constitute a final determination of the matters in dispute between the parties to the arbitration, That was one of the defences set up by the defendant in the action and it appears from the case of Harrison v. Creswick, 13 C.B. p. 399, 138 H.R. pe 1254, that such a defence is open in an action to enforce the award. It is plain that "The Court presumes, unless and until the contrary be shown, that the arbitrator or wapire has by his award determined those matters, and those matters only, which were referred to hime The burden of proving that he has awarded on matters not within the submission, or that he has failed or omitted to award on matters which were within the submission, lies on the party who seeks to impeach the award." I am reading from Halsbury 2nd Ed. vol. le at ps 664 and there are passages to the same effect in the case of Harrison v, Creswick to which I have just referred. The present award is a document of considerable length and it shows that the arbitrators went to considerable pains to hear and determine the matters that were in dispute between the parties, almost at the commencement of the document they refer to the fact that in the terms of reference dated 8th June, 1950, they were told that both parties had agreed that all matters in difference between the parties thereto and all questions arising out of or in any way relating to the partnership theretofore existing between the parties or the dissolution thereof and the question of the amount payable by Burmeister to Maguire by way of purchase price of the share or interest of Maguire in and to the business and assets of the