STAVROPOULOS v KORDAS AND LUCAS PTY LTD [1989] NSWCA 196

STAVROPOULOS v KORDAS AND LUCAS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA and Hope AJA 24 October 1989

[1989] NSWCA 196

Priestley, Meagher JJA and Hope AJA The Court declines to grant leave to appeal in this matter.

The application for leave was made upon the basis that (i) leave to appeal from the refusal of Brownie J to grant leave to appeal against the Arbitrator's award was based upon a view of the meaning of s38(4) of the Commercial Arbitration Act which should be considered by this Court, and (ii) that if the meaning of s38(4) contended for by the claimants were correct, then there were matters of law which had been decided by the Arbitrator adversely to the claimants upon which they should arguably have succeeded.

Therefore, it was said, the Court should hear the appeal and if it decided the s38(4) point favourably to the claimants, substitute for the order made by Brownie J an order granting leave to the claimants to appeal against the Arbitrator's award. The questions of law on which the claimants said the Arbitrator had erred could then be argued at first instance.

The first of the claimants' two points was not disputed by the opponent. The second was, but on the materials before the Court it was difficult to see if the dispute was well founded. Assertion and counter assertion were made from the bar table in an unsatisfactory way, leading eventually to the tender of the entire transcript of what took place before the Arbitrator. The Court, having heard lengthy argument without the opportunity to consider the transcript, reserved its decision.

Having now considered the transcript, the Court is of the view that, in light of the way the proceedings were conducted before the Arbitrator, there is insufficient prospect of the claimant succeeding on any of the points of law they seek to raise (other than the s38(4) point) to warrant the granting of leave, even if s38(4) were to be construed along the lines they contend for.