FRANCIS DENNIS CURRAN v ANTONIO ALVARO trading as ALVARO BROS (BUILDERS) [1989] NSWCA 54

FRANCIS DENNIS CURRAN v ANTONIO ALVARO trading as ALVARO BROS (BUILDERS)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA, and ROGERS AJA 31 July 1989

[1989] NSWCA 54

Priestley and Meagher JJA and Rogers AJA This is an application for leave to appeal against a decision of Capelin AJ What was before him was an appeal which may have been rather dubious in its origin so far as its validity is concerned; but no point is here taken about that, and this Court's decision in no way reflects any concern or view about the validity of that appeal.

The amount in issue in the building arbitration which was the subject of the appeal was $4,672 together with interest which had accrued since 1982 so that the amount, if the builder's claim was right, which had become due, amounted to a significantly larger sum. Even so, the appeal concerned a comparatively small amount arising out of a building dispute.

The issues which were argued before Capelin AJ were fully dealt with by him in his reasons. The principal issue sought now to be raised is that the appellant had been denied natural justice in the hearing before the arbitrator. Capelin AJ gave his reasons for taking a quite opposite view. Leave to appeal to this Court is sought also on various sub- sidiary grounds. A reading of the reasons of Capelin AJ shows that he took into account all of the matters which are urged upon this Court as being reasons for granting leave. It also appears that his review of what happened before the arbitrator, so far as concerns the principal aspect of the application for leave to appeal, the natural justice point, was essentially a factual one.

What this Court is asked to do is to grant leave, so that on appeal a detailed examination of what happened before the arbitrator may be made to see whether, as the claimant contends, the assessment by Capelin AJ of what happened in regard to the natural justice point was wrong. In the Court's view, particularly having regard to the scheme of the Commercial Arbitration Act, this is not a suitable case for the granting of leave to appeal. The essentially factual question about the natural justice point does not raise any matters of legal principle. The other arguments concerning legal questions which were put in a way subsidiary to the natural justice argument do not seem to the Court to be questions which it is appropriate to consider on the circumstances which are revealed in the proceedings before it.