Cable (1956) Ltd v Hutcherson Bros Pty Ltd [1969] HCA 37

High Court of Australia Barwick C.J. McTiernan, Kitto, Menzies and Windeyer JJ. Cable (1956) Ltd v Hutcherson Bros Pty Ltd [1969] HCA 37

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 8 Barwick C.J.

This is an appeal against a judgment of the Supreme Court of New South Wales (Court of Appeal Division) answering questions asked in a case stated to it by an arbitrator pursuant to s. 9 of the Arbitration Act, 1902, of that State. The Court, by majority, answered the questions favourably to the respondent. The arbitration was in a dispute arising out of a building contract between the parties, the appellant being the building owner and the respondent the builder. The arbitrator who carefully and clearly made his findings of fact made his award in various alternatives according to the answers which the Court might give upon the matters of law submitted to it in the case stated. Appended to the case and forming part of it is a large number of documents, including a document called "Articles of Agreement and Specifications".

From the findings of the arbitrator and the documents in his award the following relevant facts emerge. The appellant is the lessee from the Bunbury Harbour Board of land at Bunbury Harbour in the State of Western Australia. That land had been reclaimed from the harbour by a process of hydraulic filling. Both parties accepted the results of certain load bearing tests which showed "a settlement of approximately one inch at a load of 4 tons per square foot" and a statement which said that "it is anticipated that the ground will remain solid after the initial settlement". At no time did either of the parties by itself or by consultants make any investigation of the character of the subsoil beneath the site on which the appellant desired certain works to be erected. In 1964 the appellant, a producer of ilmenite and associated minerals derived from beach sands in Western Australia, proposed to have a bulk storage and handling plant erected on the said site which is in the vicinity of a land-backed wharf where storages for other producers of such minerals were then under construction. The scheme or project of the appellant consisted of two storage bins, each capable of holding 8,000 tons of ilmenite recoverable by gravity flow, a bucket elevator to transfer the material from a hopper to a conveyor to convey it to the bins whence it would discharge through bottom chutes to an under bin conveyor. The ilmenite would arrive by road transport in batches of 28 tons weight and be elevated and placed into the bins at the rate of 120 tons per hour. It would be discharged from the bins at a constant rate of 850 tons per hour.