WARLEY PTY LTD v ADCO CONSTRUCTIONS PTY LTD [1988] NSWCA 166

WARLEY PTY LTD v ADCO CONSTRUCTIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, HOPE and MCHUGH JJA 21 October 1988, 30 November 1988 [1988] NSWCA 166

ARBITRATION — commercial arbitration — building dispute — arbitrator finds "minor" flooding of building — rejects proprietor's counter-claim against builder for delays and costs — application for leave to appeal to Supreme Court refused — whether appellant has shown any question of law arising out of the award — appellant concedes that there was some evidence upon which the arbitrator could find as he did — argues that award is one which no reasonable arbitrator would have made upon the evidence — whether any such argument raises a question of law" — held: (1) No question of law is raised. Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139; Soulemezis vy Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 applied; (2) It is unnecessary to determine whether, if there were an error of law, it arose "under an award". Universal Petroleum Co Limited v Handels und Transport GmbH (1987) 1 WLR 1178 referred to.

APPEAL — question of law — meaning of — arbitration — whether intention that award is one which no reasonable arbitrator could make raises a "question of law" — held: It does not. Azzopardi vy Tasman UEB Industries Limited (1985) 4 NSWLR 139 applied. (Per Kirby P) Semble it does raise a question of law but the decision in Azzopardi requires a contrary conclusion. Pioneer Shipping Limited and Ors vy BPT Tioxide Limited [1982] AC 724, 742 referred to.

LAW REFORM — appeal — appeal limited to question of law — allegation that finding of fact perverse, unreasonable or grossly wrong — whether such errors sufficient to constitute a question of law — suggestion (per Kirby P) of the need to reconsider a provision for appellate review of grossly erroneous or perverse fact finding where the appellate court is confined to review of questions of law.